Attorneys Reviewing Mediation Agreements – Perspectives and Planning Can Affect Outcomes

Sep 18, 2022

Let me share a story from a colleague—a situation many divorce mediators have experienced.

Steve and Nancy came to mediation. They worked with their mediator to develop a plan for their divorce. Many decisions were made, based on information being shared, options being explored and evaluated, and some amount of negotiation and compromise.

They each decided to hire an attorney to review the agreements they made in mediation. Steve hired an attorney who also mediates. Steve’s attorney had certain questions about their agreement, and Steve explained his reasoning for why he agreed to make certain decisions. Nancy engaged an attorney who is a seasoned divorce litigator. This attorney told Nancy that he would reach out to Steve’s attorney and attempt to renegotiate the mediated agreement or suggest that Nancy litigate the divorce so she could obtain a better outcome for herself. The attorneys spent several months negotiating an agreement different from what was reached in mediation. Steve was anxious to complete the divorce process and gave in on many of the issues.

What started as a cost-effective, amicable process involving decision making to meet personal needs changed into a more adversarial and costly legal process that placed advocacy ahead of collaboration. Both Nancy and Steve became disenchanted with the mediation process and the attorneys.

As a divorce mediator, I encourage you to seek legal representation when it is important for you to have the legal support that I cannot offer as a neutral mediator. However, the choice of a review attorney…can greatly influence the process.

As a divorce mediator, I encourage you to seek legal representation when it is important for you to have the legal support that I cannot offer as a neutral mediator. However, the choice of a review attorney, as seen in the above example, can greatly influence the process.

No mediator can protect you from an experience like the one encountered by Steve and Nancy. On the other hand, there are some the steps I take to reduce the likelihood of an agreement reached in mediation being unraveled by review attorneys:

  1. Make sure you are properly informed.
    If you have consulted with an attorney before or during mediation, you were probably given legal information and perhaps even legal advice. Because I can’t be sure if you have consulted with an attorney, I provide a summary of the laws that would apply to your divorce if you had contested your divorce in court.
    2. Resolve legal questions during mediation.
    Understanding that there are laws that apply to a contested divorce, you may prefer to make decisions that are different from “what would happen in court.” This allows you to meet your specific needs in a way that works better for you. In some cases, and for perfectly understandable reasons, you may navigate toward wanting to better understand of how a judge would evaluate an issue. In those situations, I find it useful to refer you for a legal consultation, or I will engage an attorney to join the mediation session in a neutral capacity to discuss what a Judge would consider in making a decision.
    3. Identify decisions that are likely to be “questioned” by a review attorney.
    When you make choices that may differ from certain norms (i.e., unequal division of assets and debts, or child support or maintenance that differs from state guidelines), I will ask you to think about how you would explain your reasoning for agreeing in mediation to make that decision. My hope is that any question asked by a review attorney will have already been asked by me.
    4. Provide referrals to attorneys who support mediation and self-determination.
    You are always free to seek out legal advice from the attorney of you choice, but most clients are appreciative of referrals. My list of review attorneys is limited to attorneys who either offer mediation services as a part of their practice or are trained as collaborative attorneys.

When you decide to mediate your divorce, you are acting on the principle that you can make your own decisions about how to end your marriage, which may include getting legal advice or a constructive legal review of the decisions you’ve made. With information, preparation, and legal assistance that respects the mediation process, you will be far less likely to suffer the fate of Steve and Nancy.