In these tough economic times, many prospective clients are turning to mediation to negotiate their divorce settlements because of the potential cost savings. In mediation, parties meet with a private and impartial mediator to work out the details of their divorce settlement.
A lot of folks are under the mistaken impression that a mediator who is also a family lawyer like me, will advise and make recommendations to the parties how they should settle their case. In addition, it may be assumed that I write their Property Settlement Agreement and handle the divorce court case as well.
Some prospective clients think mediation is a soup-to-nuts process that ends with a Final Judgment of Divorce. This is incorrect and, in fact, I am writing this post to try and help clients understand the process more clearly.
There are several BIG reasons why a party in mediation, as a minimum, should have an office conference with a family lawyer before starting mediation.
First Big Reason:
The role of the mediator and the attorney are not the same.
Mediators work with couples, and not with each individual spouse. Mediators do not give legal advice to each party separately. Mediators do not advocate for either party. The whole point of mediation is that the mediator stays neutral, calm and goal oriented.
An attorney who is focused on you as a client is going to advise you about the best choices you should make in order to resolve your case. Your own attorney will tell you the facts and realities of your case and will give you the right parameters for settling your case. For example, your own lawyer will tell you what your rights are and what your responsibilities are as a party.
In addition, each party needs a reality check in regards to alimony, child support and equitable distribution. A mediator will NOT provide a client with this valuable information because it’s not their job and they are struggling to stay neutral.
Second Big Reason:
Spouses who are negotiating for themselves in mediation need to know before they start the process their rights and responsibilities both individually and as a parting couple. When clients come to me to mediate, I always ask them if they have had the benefit of an office conference with a family lawyer. If not, I require them to do so.
Why? Quite frankly, because it makes my job easier. When couples come to me to mediate they are often at opposite ends of the spectrum as to what they should agree to. If neither of them has had the benefit of legal advice, they cannot come to the table to negotiate well prepared. The benefit of counsel before you mediate is that you will be negotiating from a position of knowledge. Both parties will come to the table prepared, knowledgeable and closer to an agreement than their uneducated counterparts. This allows the mediator to built a consensus between the parties in less time and with less arguments because the parties know the parameters for a reasonable settlement from their respective attorneys.
Third Big Reason:
Once the process of mediation is completed, the mediator prepares a document known as a Memorandum of Understanding. The parties do not sign this memorandum but wait until one party’s lawyer converts the Memorandum of Understanding into a formal Property Settlement Agreement which the court will accept as a final Agreement. Many clients have a difficult time understanding that the mediator does not write their final agreement. The reason Mediators do not do this is because the mediator wants to remain neutral. The Memorandum only expresses the facts of the party’s agreement, but does not include standard boilerplate language that a completed Property Settlement Agreement includes. It is so important that once the lawyer for one party writes the final Property Settlement Agreement, that each spouse has it reviewed carefully. As I said, each client needs to know exactly what the Agreement says and that the Agreement says what the client wants it to say.
Fourth Big Reason:
Once the final Property Settlement Agreement is reached , written and signed by the parties, someone has to take the final step of actually filing for divorce in the Superior Court and going to the courthouse to obtain a Final Judgment of Divorce. Most couples have an agenda between themselves as to which of them will be the “Plaintiff”. Sometimes one spouse or the other is more “at fault” and that makes them the “Defendant”. Sometimes the parties don’t really care about which spouse files for divorce and either lawyer can make the application.
Ok, let’s review.
The parties need to have legal counsel so they can begin the process of mediation intelligently. The parties need to have legal counsel so they know that the final agreement they enter into is correct and valid. Finally, the parties need a lawyer to file a Complaint for Divorce, serve the other spouse, prepare default pleadings, schedule the final hearing, prepare the Final Judgment of Divorce and go with the client to the courthouse to complete the legal part of the divorce.
Different lawyer/mediators have other ways they handle these matters, but this is my game and how I handle divorce mediation. Other mediators do not require that the parties speak to their own counsel, but I think clients without counsel are at peril. I think that this is the best way to make the right choices, move ahead and make the final decisions for your family.