Mediating your Divorce: Take your Family Law Attorney with you
Mediation is often an effective option for resolving issues in separation and divorce. It is more affordable takes less time, and focuses on solutions rather than filing a case and “going to Court”. Family members seeking to divorce have the option to just hire a mediator to resolve the entire matter in mediation and avoid the extra expense of hiring a Family Law Attorney to assist them at the mediation. Some are unaware that having an advocate at mediation is standard practice.
Divorce and Family Law cases are some of the most difficult cases in our judicial system because they involve nearly every aspect of each party’s financial, legal and emotional life. Often Family Law clients are engaging with the legal system for the first time and cannot be expected to know Court procedure or the potential pitfalls. Unless the issues are very straightforward and mostly agreed upon, most mediators advise each client have a Family Law Attorney at the mediation. I know it sounds self-serving for members of the legal system to advocate, “bring your lawyer,” but before dismissing the idea please consider the risks.
4 good reasons why a person should not engage in mediation without a Family Law Lawyer:
- The mediator is not permitted to give legal advice to either party. The mediator’s role is to assist the parties to reach a resolution of all issues between them. Providing legal advice to either party puts them in the role of advocate. In most marriages, the parties are not equally situated. Consider a case where one party has been a homemaker for 20 years and the other a business executive. The mediator may want to advise the homemaker of certain rights and claims, but is required to remain silent. Legally, it is “fair” that the mediator remain neutral, but it is much more likely to be an equitable resolution if both parties have access to legal advice while considering mediated issues.
- Full financial disclosure is required. In all Divorce and Family Law cases court rules require complete financial disclosure from both sides. Very often parties attending mediation without an attorney fail to provide accurate, or even rudimentary, disclosure. The mediator has no option but to work with each party’s stated values of assets and debts. This often leaves one side completely dependent upon their spouse’s good faith and honesty during mediation. The mediator, left without supporting documents, simply must work to reach a resolution based on information provided by one party.
- Drafting of a Settlement Agreement: Generally, only your attorney will have the role and experience to ensure that the drafted agreement represents your best interests. Once the mediator has helped the parties reach an agreement in principle, the terms of their agreement must be drafted into a form that will be acceptable to the Court as a Final Order. Divorce and Family Law Settlement Agreements must be drafted precisely, and with a clear eye on the fact the family will continue to have ongoing relationships involving parenting, financial support, medical and educational needs and costs, etc. To be effective, Settlement Agreements must anticipate and provide clear guidance for resolving future disputes outside of the legal system. If the drafting is left to the mediator, he or she will do their best, but it is not reasonable to expect that such drafting will be thorough or effective without the input of your advocate.
- Property settlements and alimony waivers are permanent. Once an agreement has been approved as a Court Order, all issues involving division of assets and debts and waivers of alimony and spousal support are permanent. Mediation can be long and tiring. It is not unusual for parties to become overwhelmed, lose focus or make agreements they haven’t thought through. I have met often with potential clients who ask me to review Court Orders, based on mediated agreements, that are blatantly unfair to one side. Courts are very hesitant to re-open cases once a Final Order has been entered, so frequently there is little that can be done to change it.
Mediators provide the best service and most reliable agreements when each party is represented by a Family Law attorney. When 3 people, who are skilled and knowledgeable in Divorce and Family Law, work together to resolve the dispute, the resolution will be more even-handed and effective. Divorce and Family Law Settlement Agreements made without the benefit of Family Law lawyers can leave important issues unresolved or not clearly resolved, causing the parties to return to Court and/or mediation numerous times. Fixing mistakes or re-open the divorce case because they realized their “agreement” was not fair to them, is very difficult and always expensive.
In my experience it is always better to pay the cost to do it right the first time to save money and avoid further emotional suffering.