Mediation versus Negotiation

Posted on Apr 3, 2019 by Katie Carter

We get lots of questions about mediation, and I can certainly see the appeal. Divorce is scary as it is. Hiring and working with an attorney is probably also a little scary. A mediator seems like a softer option, especially if tensions are already high.

It’s nice to think that you could go in, sit with a mediator for a few hours, and resolve all the issues – without an attorney, without going to go court, and without straining the relationship further (especially if you share children in common).

If you’re interested in mediation (as opposed to negotiation through an attorney) there are some things you should be aware of. Just like with any other choice you make in this life, there are advantages and disadvantages to a decision to move forward with a mediator. The more you’re aware of the disadvantages, the more you can work to ensure that you’ve taken these factors into account.

A couple of things you should know about mediation:

1. A mediator is NOT an attorney.

Well, maybe that’s not entirely accurate. A mediator CAN be an attorney. But, if you’ve hired a mediator, you’ve hired him or her in his or her capacity as a mediator, not as an attorney.

Mediators are there to help you reach an agreement. That’s it. They’re not there to advocate for you, to tell you what a judge might order, to explain the law, or to cajole your husband into giving you more than he’s offering. It is just the mediator’s job to help you find common ground as you move towards a complete agreement.

2. Mediation can be different if there’s an uneven balance of bargaining power.

If your husband is abusive, chances are good that he will use mediation as an opportunity to be abusive, too. If he has learned that he can yell and scream and stamp his food and that you will eventually agree to do what he wants, chances are good that you’ll see this behavior in and around mediation.

That’s not to say that he’ll do it in front of the mediator, necessarily, but most abusers have very subtle tells that, to a casual observer might not mean much, but might leave an abused spouse terrified or unable to speak up in her own defense.

If you can’t stand up to him, mediation might not be the right course of action for you. If you still really insist on mediation, it might be a good idea to consider hiring an attorney AND working with a mediator – yes, that happens! It’s not all that common, of course, but you could work through mediation with an attorney present. If both you and your soon to be ex are committed to reaching an agreement, and especially if he is also represented by counsel, it could be a very feasible option.

3. Mediators often draft their own agreements.

Remember how I said mediators generally aren’t attorneys? Well, that also makes mediators drafting their own agreements a pretty scary thing.

Attorneys write their agreements in a particular way for a reason. We know the law, we know how the law works, and we are up to date on the changes. We’ve revised our agreements time and time again to reflect these changes, and to correct subtle nuances of language.
I’ve seen mediators do all sorts of weird things with their agreements. Things that I’m not entirely sure would hold up in court.

And, if you think about it, isn’t that a big part of why you enter into an agreement? To get divorced, sure, but also to minimize expense (and the threat/fear of the unknown) later on down the line? What good is an agreement that sees you back into court – even if you win – two or three or more times in the intervening years? That sounds like a headache to me! If I wanted to be divorced, I’d want the ink to dry on my final divorce decree, and then to never have to worry about the terms of that agreement again. I’d want to know that it was final, settled, and unlikely to be overturned or even called into question later.

Mediators don’t have the experience that we do defending against bad agreements, so often don’t have the ability to put in those extra protective provisions. That’s not to say that you shouldn’t work with a mediator, but perhaps should have an attorney review the agreement the mediator prepared, or even have an attorney draw up the agreement based on the agreed-upon terms in mediation.
I’m definitely not saying that you shouldn’t go to mediation. Go, if that’ll help you! Everyone’s path is different, and there are many right answers to the same question.

There are, however, some wrong answers. By writing this, I’m hoping to be able to help you turn mediation into the right choice for you by helping to point out the disadvantages so that you can correct those potential problems and protect yourself.

For more information, to request a free copy of one of our books or reports, or to schedule a consultation one on one with one of our licensed and experienced Virginia divorce and custody attorneys, give our office a call at 757-425-5200.