In talking about options with prospective clients, I have discovered a number of misconceptions relating to how mediation works. Many people become interested thinking they can settle a divorce and don't have to pay attorneys. Unfortunately, that is not always a great bargain when people make uninformed, bad decisions for themselves.
Working with an attorney in some capacity can help avoid or minimize problems. You can hire an attorney and have him/her represent you throughout the divorce process. You can consult with an attorney prior to mediation, or you can hire an attorney to be with you just for the mediation.
As you are deciding whether to hire an attorney, let me point out some common misconceptions I have heard about how mediation supposedly works.
1. The mediator will listen to both of you and then recommend terms for a settlement. No. The mediator must remain neutral. Making those decisions for you and your spouse would violate impartiality and lead to the mediator siding with one of you on some issues. You have to make your own proposals.
2. There's little or no preparation to be done. Actually, there's often a lot of preparation that is needed. You should gather documents, prepare charts and exhibits and outline the issues and your proposals. You need to have a clear picture in mind for what you want to end up with.
3. The mediator will make sure you don't make any bad decisions or bad agreements. Wrong. The mediator cannot be neutral if he/she is advising you or your spouse to accept or reject a proposal. I have seen a number of bad decisions come from mediations where attorneys did not participate.
4. The mediator can prepare the paperwork. No. Again, the mediator must be neutral. Judgment calls must be made numerous times in preparing paperwork for a divorce, and that would violate neutrality.
5. You can change your mind later after you have agreed. Wrong. Once the agreement is written and signed by the parties, assuming it also contains the statutory warning that the agreement is binding, then the agreement is binding.
6. You won't be surprised by facts, issues or proposals during the process. No, it happens all the time. With an attorney, you will have an opportunity to respond effectively.
7. The mediator will make sure you don't overlook something. They cannot take on that role and remain neutral.
Bottom Line: The 7 statements above are false assumptions made by many parties who try mediation without an attorney's help. Your divorce will have enough financial and family significance that you should hire an attorney so you can settle your case under the best terms for you.
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