Mediation can be a very effective way to resolve the issues in a divorce. As opposed to a trial (where the divorce terms are decided by a judge or jury), mediation is a negotiation process conducted in a conference room setting where the spouses reach an agreement on their terms. During mediation, the spouses and their legal counsel speak with a mediator who is trained to help people reach an agreement. The mediator is usually an attorney, counselor, or other professional. Mediation, if done properly, can be a faster and cheaper alternative to litigation in court. Here are six key points that will help you make the most of your mediation.
1. Get legal advice. For most people, a divorce is the most difficult, complicated, and all-encompassing process they will go through in their lifetime. Your children, house, investments, business, and future financial well-being are all at issue in a divorce. One mistake can result in loss of custody, reduced assets, or financial ruin. Spending some money on legal representation now may save you money and protect you from ongoing hassles later.
2. Prepare, prepare, prepare – Many spouses who attempt to mediate without any preparation won’t reach an agreement or will have a disastrous agreement. Divorce is often a very complicated and fact intensive process. You are dealing with real estate, investments, taxes, custody, child support, alimony and the resulting legal and procedural issues. If you hire an attorney to represent you before mediation, the attorney can help you gather the information you will need in order to protect your rights at mediation.
3. The mediator cannot provide either party with legal advice. Many people incorrectly assume that the mediator will help them understand the legal issues in their case. The mediator is not allowed to answer your legal questions (such as appropriate alimony, retirement plan division, custody considerations, or joint debt liabilities). This is why it is best to make sure your attorney can attend the mediation.
4. The mediator’s role is to help you reach an agreement, not to help you evaluate the fairness of the agreement. The mediator is not your attorney and is not there to look out for your best interests. He or she must remain neutral and is not allowed to take sides. Unfortunately, the result can be a very one-sided agreement. If one spouse is not represented by an attorney, is a poor negotiator, or is simply unprepared, he or she may leave the mediation with a detrimental agreement.
5. The mediator is not the judge. As previously mentioned, the mediator’s job is to help both sides reach an agreement. The mediator cannot make any final decisions in your divorce (unless you have requested an arbitration – which is an entirely different process). If the divorcing spouses can’t agree on an issue, the mediator does not decide who is right and who is wrong. The unresolved issue will be decided later through continued settlement negotiations or in court.
6. Your mediation agreement is binding. Unless you specifically reserve the right to have your mediation agreement reviewed by an attorney afterwards, any agreement you reach during mediation will be extremely difficult (and likely impossible) to undo. If you sign an agreement at mediation, be prepared to live with the terms as part of your final divorce order. Make sure you understand the agreement and you feel it’s fair before signing.
If you are still questioning the need to retain experienced legal counsel prior to the mediation, consider this common problem. One divorce mediation issue some inexperienced attorneys or do-it-yourselfers will inadequately address is the area of real estate. People have come to our firm with mediated agreements that simply state “Wife gets the house.” However, what happens if the husband is on the mortgage? Is the mortgage going to be refinanced? What if the wife cannot refinance it? What if the wife cannot make the payments? What if the house is worth less than the mortgage? Who gets the tax deduction? These are just a few of the issues that need to be evaluated prior to the mediation.
Finally, many people say they want to reach an agreement through mediation, but they are concerned that hiring an attorney complicates matters. They don’t want to send a signal to their spouse that they intend to “fight it out.” While there are some attorneys who will hinder an agreement (either from greed or inexperience), most attorneys will help you resolve your problem in a manner determined by you. If you want to try to reach an agreement outside of court and through mediation, interview attorneys carefully to ensure they are “mediation friendly.” A good attorney should help you through this difficult process.