Mediation

Should You Hire a Mediator for an Uncontested Divorce?

by / 0 Comments / 251 View / July 24, 2016

One of the biggest misconception is that when doing an uncontested divorce the parties only need one lawyer. The main driver for this belief is a desire to save money. Look, I get it, you think that the two of you are in agreement, so why should you waste money hiring two lawyers?

Well, first we need to explain the difference between a lawyer and a mediator. Your lawyer is just that: your lawyer. S/he represents you and only you. Your attorney makes sure that the deal is the best one for you, not the best solution for both.

A mediator stands between and in the middle. The mediator does not favor, or at least should not favor, one party over the other. The mediator is trying to get both parties to the middle, with little or no advantage to either one.

When you hire a lawyer, s/he is required by law to only represent one person. If a lawyer does advise both spouses then the deal can be thrown out by a judge.

It is simply impossible for one person to represent two people with conflicting interests. One party will always suffer. Only when each of you has a lawyer will your rights be protected.

For example, lets’ say the couple are fighting over money. The mediator is looking to reach a compromise without advising the parties on their full legal rights and remedies. The lawyer, fighting for the individual client might come up with various legal arguments to maximize the amount of money to be received.

So,  when one person hires a lawyer, and the other believes that the attorney represents both, the agreement is flawed and will be thrown out.

Let’s look at a 2016 court case, which while somewhat extreme, really underscores this point. In 2000, the couple signed a separation agreement, but for whatever reason continued to live together until things finally went south in 2015. Seeking, I’m sure, to save time and money, they decided to use a mediator. This is where things got hairy. After a ten minute mediation it was decided to proceed to a divorce, with the mediator now representing the wife as her lawyer. Already, you can see that this is a recipe for disaster.

He got the parties to waive any conflict of interest and a new agreement was drafted, signed and notarized.

The husband later went to court and got the agreement thrown out. He argued, and the court agreed, that he thought that the lawyer/mediator was representing both of them. He had not been advised as to his right of counsel. He was never told  that the 2000 agreement was still valid until the 2015 agreement superseded it. Finally, the new agreement was far more favorable to the wife than the 2000 agreement.

If the husband had retained his own attorney, I’m sure he would have been told that the original 2000 agreement was still valid. From there, the attorney could have used that position of strength to negotiate a more favorable deal, tweak the old deal, or dug his feet in  and enforced the original agreement. However, the mediator by changing hats to that of a lawyer muddied the waters. Whenever an attorney meets with the other spouse there is always a danger of that spouse claiming that he thought that the lawyer was representing both parties.

That’s why we never meet with or even talk to both parties in an uncontested divorce. Whenever, the lawyer talks to the unrepresented spouse there is always a danger that the courts will throw out the deal, claiming that the spouse “reasonably” thought that the attorney was representing both parties.

We handle all communications by email or letter. In each correspondence we state that we do not represent that spouse, and that he/she should confer with a lawyer. When the final agreement is done, we don’t even notarize it for them.

The key is that a mediator does not represent anyone. They are neutral. If you want your interests completely looked after, you need to hire an attorney. And don’t go cheap and think you can get by with hiring only one. An attorney who does that is legally a crook and if caught will be disciplined.