Divorce Mediation Methods

By Jean M. Mahserjian, Esq.

There is more than one way to implement divorce mediation. I have a very strong opinion on what methods work the best. That opinion has developed over time and as a result of working on many, many mediated divorce cases. In some cases, the parties mediate their divorce and never need to see an attorney or court room in the future. In other cases, the parties are not well informed and they end up in court and are often surprised at the results when they do. There are specific do's and don'ts that will help you through the process and ensure that you do not need to hire attorneys or go to court after you are done with your divorce mediation process.

In my experience, divorce mediation is successful when the mediator requires that both parties have an independent attorney and those attorneys are available to provide legal advice from the commencement of the mediation. I do not believe that a mediator should provide legal advise to the parties. How does a neutral mediator give each party an in depth understanding of all of their legal rights, or a proper analysis of how and what to negotiate in a divorce case? The answer is that a neutral mediator cannot. There is no way to properly advise each party while both parties are sitting in the same room.

When the parties' in divorce mediation seek independent legal advice early in the process, there is little risk that the parties will mediate without the proper knowledge of their rights and responsibilities. There is also little risk that an attorney will review a mediated agreement "after the fact" and find fault with it. Just think this through. If you ask an attorney to review a divorce mediation agreement that you negotiated without the attorney, don't you think that there is a very high risk that the attorney will find things in that agreement that he/she would have done differently? After all, attorneys are opinionated and egotistical. Of course the attorney will find fault with the agreement if you give it to that attorney at the conclusion of the mediation process. If instead you utilize an attorney to help you understand your rights and responsibilities and to assist you in mediating your divorce, the attorney is less likely to criticize the agreement when it has been finalize.

Requiring that both parties have independent legal advice can benefit the mediator and the divorce mediation process in many ways. If a dispute occurs in mediation and the parties are in disagreement, the mediator can ask each of the parties to consult with their attorneys on that issue. After consulting with their attorneys, each party can then resume divorce mediation with a better understanding of their legal rights, the position that they want to take, and their spouse's position.

The cost of divorce mediation can be greater if each party has to retain an independent attorney from the outset. However, that cost is far less than the cost of going to court down the road if one party finds out that they did not know what their rights were and they have to hire an attorney to try to "fix" an agreement gone bad.