I have been working with divorcing couples as a mediator for over 25 years. I also practice divorce litigation, specializing in divorce and family law and that makes all the difference when I serve as a mediator. I just finished a case that ended up in litigation, after another mediator worked with the
couple for over a year. It shouldn’t have been litigated, but unfortunately the mediator that the couple chose was a psychologist. Not a smart move. After months of sessions, they still had no agreement and the outline and memo of understanding was so convoluted it could not be transformed into a binding legal divorce agreement. Even the parenting language and suggestions, which a psychologist is skilled in, was incomprehensible and vague.
What made matters worse is that my client, not having any understanding of the law or knowledge of what was required and fair, had been just saying yes to whatever the wife requested. He finally sought legal counsel for two reasons. 1) to see how he could move the divorce along as it
seemed to be an ongoing saga with no end in sight. 2) they were told by the mediator to have an agreement drafted because the mediator did not do that and they had to hire an attorney. When he came to see me, my client expected to be able to give me the outline (such as it was) and the memo of
understanding and I would be able to draft a binding enforceable agreement and process the divorce.
I advised him that many significant issues were not addressed. I explained the law, and how a divorce agreement must have a representation of income and certain language for child support, custody, retirement, etc. He looked at me like a deer in the headlights and said the mediator never
mentioned any of this. After I ran support numbers and the obligations he was agreeing to in the memo of understanding, he realized he could never live up to what he had promised and never thought it through.
As a result of this process the wife had unrealistic expectations, a false sense of security, and felt betrayed once she found out he hired an attorney and wanted to enter into an agreeable that was based on the law as well as the parties particular preferences and goals. The lesson to learn from this is
to seek a qualified divorce attorney as a mediator. Also it is wise to go for a consultation with a divorce attorney before the mediation just for information so you know some basics before you choose
or see a mediator.
When I mediate, while I do not advocate for either side because I am their mediator, I explain the law and advise the couple what needs to be in an agreement, what financial information I need to see and then share the information with both parties. I then use all my experience and knowledge to make sure every issue is addressed and there is a meeting of the minds between the couple and myself.
My client eventually retained me and I drafted a letter to his spouse’s attorney . Once the wife knew he saw an attorney, she also retained one. In the letter I discussed the problems with the mediation outline, I gave a reasonable proposal, and requested we exchange financial
information. The wife became angry. The case unfortunately ended up in court. The good news is once we exchanged financial information, drafted an agreement, made many revisions to the draft as it was shared between the two attorneys and the clients, and attended two court appearances, the case settled.
Unfortunately, it damaged the spouse’s relationship further. They both incurred significant legal fees. The divorce was delayed because of all the back and forth as well the time it took to get the required information about assets, liabilities, income and retirement. None of this was done during the
mediation sessions. This was coupled with fact that they had complicated assets and retirement which needed to be disclosed, reviewed and the proper language drafted to protect both spouses.
I have many other horror stories of clients who went to a non- lawyer mediator; such as the agreement was so poorly drafted I had to go to court to amend language for retirement assets to be transferred. An even worse situation is when the mediator leaves out language to protect either party when the agreement needs to be enforced if someone does not abide by the terms. I could go on and on.
Please do not think I do not support or advocate for mediation because I do.I truly believe the the process can work. Mediation is an aspect of my practice I enjoy and find rewarding. Mediation can work. Just be sure you choose a seasoned, diligent, knowledgeable, and ethical divorce attorney who mediates. That is the best advice I can give.