February 28, 2017
Strengths and Weaknesses of Non-Attorney Guided Mediation
Divorce mediation is an out-of-court dispute resolution tool that helps separating couples who want to amicably settle their issues with minimal involvement of the legal system. A good mediator is one who will guide the spouses during their negotiations, facilitate meaningful dialogue and point the parties away from potential litigation hazards. Many attorneys will encourage their clients to engage in mediation in order to narrow issues or to get an independent view point in areas where there is disagreement. It is recommended that a divorcing spouse look for an experienced mediator and check the mediator’s references before agreeing to use a particular mediator.
Keep in mind that it is not the job of the mediator to look out for each spouses’ interests. Rather, the mediator’s job is to act as a neutral party to facilitate the spouses in reaching their own agreement- even if it is unfair or inequitable in the eyes of his or her lawyer. A mediator is trained to be neutral. He or she usually will not alert or advise if an agreement may be unfair to either party. A lack of knowledge about your spouse’s financial assets, ignorance of the law, and poor negotiating skills can easily cost you tens or hundreds of thousands of dollars when you end getting less than you otherwise would have gotten had retained a divorce attorney. Not only is it advisable to retain an attorney to guide you in the mediation process, it is often times critical so that you don’t end up accepting an inequitable marital settlement agreement or find yourself unable to enforce the terms of your agreement.
The Role of a Mediator and the Benefits of Attorney Guided Mediation
Let us assume that the divorcing spouses have gone though non-attorney guided mediation and have reached a formal memorandum of understanding. Now what? How do the spouses protect that agreement? What if one spouse realizes the terms of the agreement looked good on paper, but are not exactly practical in their application? Under these circumstances, a spouse can find him or herself in the very situation she or she didn’t want to be in: the spouse now needs to hire a lawyer to help retrace and possibly redo all the steps he or she just took!
In some (but not all) cases, settlement agreements reached at non-attorney guided divorce mediations are poorly drafted with vague terms which make them difficult to enforce. If such an agreement is reached at mediation, the spouses will need to file it with the court in order to enforce the document via Court order. Sometimes, mediators will simply file the agreement as a “Divorce” matter. However, there may be many additional issues addressed in the agreement that should be filed separate and apart from just simply a “divorce” action. If an agreement reached at mediation speaks to a host of issues, but is incorrectly docketed or poorly drafted, there is often little recourse to re-open an executed marital settlement agreement to address the individual terms.
Having an attorney review or draft the document will not only allow the spouses have a clear understanding of the agreed upon terms, but will also ensure that the court is equipped with a well-written, concise set of directions in order to protect and enforce the rights and obligations outlined in the agreement. Spending a little money for an attorney review of any divorce mediation agreement before the mediation agreement is filed with the Court can be a wise investment,
Protecting Your Agreement
Marital Property settlement agreements are contracts. Generally, modification of marital property settlement agreements by the court will only happen if there has been fraud, duress, coercion, or a mutual mistake in the drafting of the order or agreement. Accordingly, agreements regarding spousal support, alimony pendente lite and alimony are rarely modified by the courts absent a written agreement by the former spouses to modify the documents. This is different than child support or custody arrangements, which remain under the purview of the court and can be altered at nearly any time due to changed circumstances.
Re-opening or seeking to modify a marital property settlement agreement is legally complex and may be rather expensive. In the end, attorney-guided mediation may allow the parties to have their cake and eat it too. Although divorce mediation without attorney involvement can be an effective and less expensive means to foster agreement between divorcing spouses, having an attorney shepherd you though the process to ensure a fair and equitable result can avoid unnecessary expense and heartache down the road.
If you have any questions about mediation, please contact High Swartz at 610-275-0700 or via email at firstname.lastname@example.org.
The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.