With Court backlogs and increasing costs of litigation, many individuals are utilizing the mediation process to resolve their divorce issues. As an attorney that has been trained in alternative dispute resolution, I believe that with the right set of facts, parties should strongly consider mediation in lieu of litigating their matter.
Traditionally, parties engage mediation by hiring a third party mediator without consulting with an attorney prior (and during) the process. When speaking with divorced individuals that proceeded without legal representation during the mediation process, I find that many of their final agreements did not adequately protect their legal rights. Problems often arise due to the fact that mediators, while qualified professionals, are not legal representatives of either party. The role of the mediator is to facilitate agreement and not necessary discuss the legal ramifications to the parties regarding their suggested settlement terms.
For instance, I recently met with a client that agreed to a provision in mediation five years ago that both him and his wife would agree to equally split the costs of the children’s college. When taken at face value, the provision seems harmless. However, this provision has created thousands of dollars of legal costs to both parties due the vaguely drafted language by the mediator.
You may be asking yourself, what is the problem with this language if both parties want to split college costs? As any experienced matrimonial attorney will advise, there is much more to this issue than simply stating you agree to split the costs. For example, how do the parties treat funds in the child’s college educational accounts, what incidental expenses are included in the definition of “college costs”, should the child have to apply for loans, grants and scholarships prior to the parties’ contribution…etc? With neither of the parties having legal representation during the mediation process, these details were not worked out during the negotiation and they now find themselves in an unintended litigation.
To avoid such potential pitfalls, I strongly recommend that if you plan on privately mediating your divorce matter, you retain experienced matrimonial counsel to educate and consult with you during the process. In this model, the attorney works as more of an advisor than advocate, with the party still retaining the autonomy of attending mediations sessions without the presence of counsel.
Working collaboratively with an attorney prior to and during the mediation process will ensure that all potential settlement options are fully discussed and the right topics are addressed during the mediation sessions. Additionally, retaining an attorney will ensure that the agreement reached at mediation will be drafted into a formalized contract (Marital Settlement Agreement ), which is necessary to ensure that all details have been addressed and settled in an appropriate manner.