I get asked for recommendations all the time. For lawyers practicing in other areas of law, for therapists for divorcing women and their children, for cool lunch spots in the Hilltop area near our main Virginia Beach location (hey, I’m good at that one!), and even, sometimes, for mediators.
Ugh, mediation. It is seriously one of those parts of divorce that gives me such anxiety, I can’t even tell you. Mediation can be so great. It’s possible! But it can also be really, really terrible and, frankly, I see much more terrible mediation than I see great mediation.
I’m sorry. I won’t give you a recommendation. In fact, I don’t really know whom I could recommend in good conscience. The things that I have seen… Well, let’s just say it’s not always pretty.
Allow me to illustrate the point here for you for just a second. Buying a house or a car is a pretty big deal, right? It makes you a little nervous, signing on that little dotted line. There’s always that moment of, “Can I afford this?” and wondering what it’ll feel like to have this new expense become part of your daily budget.
That’s kind of like divorce, except divorce divides absolutely everything you’ve worked throughout your marriage to accumulate. Houses, bank accounts, retirement accounts, debts, cars, pets, kids – it goes on and on and on. To put it simply, there’s a lot at stake. And, on top of it, there’s the matter of child and spousal support.
Mediators are not lawyers. Or, at least, they are generally not lawyers. And, for lawyers who ARE mediators, they aren’t acting in that capacity when they are mediating.
Mediating is a different job. A lawyer represents one party in a case, makes recommendations for her, educates her on the law and what she might could get in court, and, at every point, advocates for her best interests.
A mediator, on the other hand, is just there to help the parties reach an agreement. He or she generally doesn’t talk about the law, what you might get in court, or whether an agreement is a good one for you. They’re just guiding you towards settlement – whatever that settlement might look like.
Sometimes, too, they do crazy things – like draft their own agreements. For a mediator who is NOT an attorney, that’s a really insanely scary proposition. Remember, you have two goals in your divorce: to get divorced today, and also to minimize problems later on down the line. Whenever parties write their own agreements or use a mediated agreement from a non-attorney mediator, I see problems. It’s not their fault. I’m sure they’re doing the best they can. But, as a non lawyer, no part of their job consists of going to court to litigate over what they thought an agreement said, or something that was inadvertently (?) left out of an agreement. Our practice DOES include those things, and we know how expensive they can be! So we (that is to say, attorneys) draft agreements designed to combat problems that we’ve seen come up before.
We’re not perfect, either, and don’t possess any magical crystal ball. But having been to court (and having had the benefit of other attorney’s cases from within and outside our firm), we’ve adapted to address a number of potential landmines that we’ve seen over the years, and that have come up as laws have changed over time.
A mediator can’t do that. In fact, a mediator often has very limited knowledge of the law at all.
A few months ago, I was at lunch with a mediator. A really nice person. Had been working in the field for nearly thirty years – which is considerably more than my nearly ten years! But, at one point, he started talking about atypical agreements he had drafted and, in at least one case, a serious problem that came up later. He had negotiated an agreement wherein one party gave a lump sum in lieu of monthly child support. I’m not sure what the agreement said, of course – but then the other party filed a petition for monthly child support, and got it. The judge didn’t find sufficient evidence that the money previously paid was intended to be child support and, even so, that’s not really how child support works.
The mediator’s lack of understanding of the law was really sobering for me. It should be sobering for you, too.
I saw another agreement written by a couple mediators yesterday. It gave the wife spousal support in the amount of $400 a month for 4 years. It’s a thirteen year marriage so, if I were to take the case, I’d advise her to push for at least half the length of the marriage. Also? I ran the guideline spousal support calculation (which isn’t binding on our courts, but generally puts us at least in a sort of ballpark that we can work from). It was $2100. The woman I met with had no idea which is, of course, on her, not the mediator. The mediator did her job. But that’s just to illustrate, again, the point that the mediator is NOT advocating for you. That can have terrible consequences.
But my husband really wants to use a mediator! What can I do?
Some people really latch on to the idea of a mediator. In my experience, it’s often husbands who think they can push their wives around. Instead of saying this, of course, they give some song and dance about how amicable it will be.
That’s all well and fine, but you can’t go into that room unprepared. If you’re going to attempt mediation, you should meet with an attorney before AND after mediation. You should talk about your assets and liabilities, and go into mediation with an idea of what you’d like to accept. You’ll need to be your own advocate. If you can’t do that, you need to know that, if things are going in a direction you don’t like, you can get up and walk out. There’s nothing holding you there, no matter how intimidating or aggressive the mediator might be.
It’s also a good idea to make sure that the actual agreement is reviewed by a lawyer BEFORE YOU SIGN. After you sign, there’s nothing that we can do.
You don’t have to hire an attorney to consult with an attorney. An attorney can help give you a better idea of what’s appropriate in your case, what a judge might award, and what you’ll need to survive post-divorce.
For more information, give our office a call at 757-425-5200.