Trust us, if you are going through divorce mediation, you need a family law attorney on your side.
What is Divorce 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
- steer the parties away from potential litigation hazards
Do your homework
Many family law attorneys will encourage their clients to engage in divorce 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.
Keeping it neutral
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 divorce 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.
Hire a family lawyer near you, even if you don't feel it's necessary
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. In all likelihood, you'll end up 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 Mediation Lawyer 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!
The Mediation Lawyer is trained in filing and writing the mediation - the right way
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 divorce 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 a family lawyer to 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 a mediation lawyer review of any divorce mediation agreement before the mediation agreement is filed with the Court can be a wise investment.
Protecting Your Divorce 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 child 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 a family law attorney shepherd you though the process to ensure a fair and equitable result can avoid unnecessary expense and heartache down the road.
The information above is general: we recommend that you consult a family law 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.