During the process of divorce, clients often ask whether they should participate in mediation and what the process entails. It is a good sign if parties are willing to try to amicably resolve their issues, either through mediation or with attorneys. In some cases, however, where the parties are wildly apart in their positions or are high conflict, mediation probably won’t work. It is not for every case, and that’s okay.
For a low-conflict case where the parties just need some help coming up with a workable settlement agreement, mediation may be effective. Below, there are a few important things to remember through the process.
The Mediator
The mediator is not an advocate for either party and is instead there to facilitate the settlement. A mediator might help the parties agree on something that is less than a party would get if they went to court—and sometimes, the opposite.
The purpose of mediation is usually to settle as easily and as quickly as possible. So, parties should be aware that an agreement based on mediation will likely be a compromise of their respective positions.
Consult With an Attorney
The parties should not agree to anything discussed in mediation or sign anything unless an attorney can provide some guidance on the terms. Even if a party does not want to retain an attorney for the divorce, that party should at least have a consultation with one to see if the potential terms are fair.
There have been proposed mediated agreements that are unfair to one side on some or many issues simply because the parties may not know any better than to ask for more or give less.
Marital Settlement Agreement
Ideally, a Marital Settlement Agreement should be drafted by an attorney and not by the mediator. Drafting Marital Settlement Agreements requires advocacy of each party, as evidenced through the language put in or kept out. If an attorney is retained for that purpose, the agreement should be drafted by them rather than the mediator.
Contact Rigden Lieberman
Whether you’re considering the mediation process yourself or have further questions, Rigden Lieberman is experienced in all matters of family law mediation. Contact us today.
