Should I go to mediation instead?

When it comes to divorce, you have options. Depending on your contentious your case looks like it is (and you know the answer to that question better than anyone), you may have more options than you even realize. Though you certainly want to make sure you get the things that you’re legally entitled to receive, there’s no reason that you have to do it any one specific way. There are lots of options, and you should make sure you take all of them into account so that you can make the best decision possible.
Lots of people ask me about mediation. It’s an option everyone is pretty aware of, but they’re not really sure how it’s different from working with an attorney. It’s rumored to be cheaper and easier, but is it? You know full well that pretty much every choice you make has a list of advantages and disadvantages, but, without knowing more, how do you know where to start when it comes to mediation? What are the advantages and disadvantages? Is cheaper better? Are you at risk of getting a worse divorce than you would if you had hired an attorney to represent you?

What is mediation?

When you mediate a divorce, you and your husband meet with a mediator (one person, shared between the two of you) to figure out how all the assets and liabilities in your marriage should be divided. The mediator may or may not be an attorney. Still, whether the mediator is or isn’t an attorney, it really doesn’t matter; you haven’t hired your mediator in his or her capacity as an attorney. You’ve hired a mediator, so that’s what you’ll get—a mediator, and NOT an attorney.

What’s the difference between a mediator and an attorney?

A mediator’s job is to help you and your husband reach an agreement—any agreement. It is NOT his or her job to educate you about your rights, let you know what the court might do, or advocate for you. With a mediator, there is no one in your corner, fighting for your advantage.
An attorney, on the other hand, is not shared. In fact, it’s unethical for an attorney to represent both parties in a divorce (which means that you’ll both pay separate fees to separate lawyers). An attorney’s job is to get your divorced, whether through negotiating an agreement or litigating in court. An attorney will educate you about your rights, let you know what (in her opinion) the court might do in your case, and advocate for your best advantage. Whatever you tell an attorney is also protected by attorney client privilege.

What are the advantages and disadvantages of mediation?

The biggest advantage to mediation is that it’s often much cheaper than hiring an attorney. Since you share one mediator between two parties, it’s much cheaper than hiring two separate attorneys. Usually, too, because the parties come to the table for the purposes of reaching an agreement (and the mediator has a vested interest in encouraging you to reach an agreement), an agreement is reached fairly quickly.
A mediation session is sort of comparable to a settlement conference. In mediation, like in a settlement conference (which is usually an opportunity to negotiate an agreement with you, your husband, both of your attorneys and, sometimes a judge), you all come together to discuss the terms. In mediation, that’s really all that happens—you have as many sessions as it takes to reach a mutually acceptable agreement. In a settlement conference, on the other hand, it’s usually something you do after you’ve tried to negotiate back and forth with letters and drafts of an agreement. Because you’re there specifically to negotiate, it often helps speed things along a bit. You’re both in a negotiating frame of mind, which is definitely a good thing. In short, mediation can be speedy, efficient, and cost effective. All good things, right?
Of course, you should also keep in mind what you’re not getting when you forego hiring an attorney to represent you. You don’t have anyone advocating on your behalf, and you don’t necessarily have any idea of what a court would award. If you don’t know, how can you effectively advocate for yourself? How can you make sure that you get an agreement that is as good as what an attorney would draft on your behalf if you don’t know the law or what the court might award you?
The biggest disadvantage is that you go in to mediation a little bit blind. Without having all the information at your disposal, it’s difficult to truly negotiate the result you need, want, and expect.

If I really want to mediate, what should I do to protect myself?

Mediation really is a great option, and I don’t want to dissuade you if that’s what you’re thinking about doing. I just want to make sure that you do it in the best way possible, so that you walk away from the marriage with exactly what you deserve.
If you’re committed to the idea of mediation, that’s fine! It’s a great way to get a divorce if you’re prepared. For women who are preparing to go through mediation, it’s a good idea to talk to an attorney beforehand. That way, you can talk about your specific situation and get personal recommendations. IF you walk in knowing a range of acceptable scenarios, you’ll have a much better chance of getting an agreement in place that actually gives you what you deserve.
Likewise, after you’ve had a chance to mediate, you should take your proposed agreement back to an attorney to review before you sign it. (Remember: once you sign it, there’s no un-signing it later, even if you didn’t understand what it meant.) That way, you can make sure that the agreement says what you think it says, and that it protects you in all the ways it’s designed to protect you. Because you’re working with a mediator, and the mediator might not know all the ins and outs of how to make sure that your agreement protects you. Since mediators aren’t lawyers, they don’t know all the things that fall through in contracts, or the things that cause problems later on when you try to enforce the provisions of your agreement.

What if I don’t like my agreement later?

You have to be really careful with contracts, because they really can’t be un-signed later. It doesn’t matter whether you didn’t read it, didn’t understand it, were forced to do it, or thought it meant something else. Once signed, it’s darn near impossible to un-sign.
In certain, rare situations, an agreement can be overturned, but don’t get your hopes up. In order to overturn an agreement, you will need to (1) show that the agreement is unconscionable and (2) prove that you were under duress.

Unconsionability

An agreement is unconscionable if it is so bad that no reasonable person would have signed it. It’s a really difficult thing to prove, because almost every agreement gives something (even something very small) to both sides. The way the court sees it, if you receive any benefit from the agreement, it’s possible that it was something so important to you that it was a bargained-for exchange. Can’t you think of just one thing that’s way more important than all the rest? Can’t you imagine trading an awful lot of things to get to keep that one thing? That’s what the court thinks, too. If you receive anything at all in exchange for signing the agreement, it’s not unconscionable.
An unconscionable agreement would give the other side absolutely everything, and leave nothing for the other side. Remember: so bad that no reasonable person would have signed. That’s pretty bad. And that’s also pretty rare.

Duress

Duress is another really difficult standard to meet. To prove that you were under duress, you’d have to prove that you were under physical threat of force. You’d have to pretty much show that your husband was holding a gun to your head and threatening to kill you or your children. Otherwise, it’s just not duress.
In a lot of cases, I hear some kind of duress argument. Duress is really a lot more serious, though, than just feeling that you were under a lot of pressure or that you were bullied into signing it.
And it’s not just that you have to prove unconsionability OR duress—you actually have to prove both. So, as you can probably already imagine, it’s really incredibly difficult.
Why won’t the courts help? You were pressured into signing an agreement, or were misled, or really just didn’t understand. It’s not fair to hold you responsible, especially since you didn’t realize what was happening and he was capitalizing on you being unfamiliar with how this all worked. He was an opportunist, and you don’t deserve to be penalized.
Still, you won’t be able to overturn your agreement easily. Contract law is like that. Judges really like it when people are able to settle their disagreements themselves, and they don’t want to make any rulings that discourage people from doing that. If judges went around overturning agreements all over the place, no one would feel comfortable signing and relying on agreements. No one would want to do the things that they agreed to do because they would be so afraid that the other side would back out of the agreement later on.
Most courts have pretty backed up dockets, so whatever private people can settle between themselves, judges don’t have to waste their time deciding. It frees up the courts to listen to cases that can’t be settled without their expertise, and it also generally means that people are happier overall with the outcome. As you can imagine, encouraging people to reach agreements, and to feel comfortable relying on those agreements, is pretty important to the courts. If judges went around overturning them, nobody would be very comfortable relying on their own agreement.
It’s a public policy thing. To encourage settlement, judges don’t get involved unless there’s pretty serious evidence to show that the agreement isn’t a good one. Most of the time, though, the judge considers you a rational adult who is capable of negotiating her own agreement.
For more information about mediation, or to meet with an attorney before or after your mediation, give our office a call at (757) 425-5200.

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