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A Spouse’s Questions about the Divorce Mediation Process

Questions:

  • If we go to mediation, can I hire an attorney after to review the documents from mediation before I sign anything?
  • What if I hire an attorney before we meet with a mediator? Do I have to tell the mediator that I have an attorney?
  • Will the attorney want to be at mediation?
  • Just trying to figure out what will be the best plan. My husband claims he doesn’t want an attorney. He said if I get an attorney he will get one too. I don’t want this to be a drawn out pissing match. He’s hurt, sad, and angry and I just want to fair, yet have my kids and my best interests protected. Thoughts?

Answer:

Yes, you can go to mediation without a lawyer and (and if you do, I would recommend you notify everyone in advance of this; it’s the only decent thing to do, and it preserves your credibility) notify your spouse that you have come to discuss and negotiate the issues and reach agreement, but that you will not sign any final, binding agreement unless and until you have reviewed any proposed written settlement agreement with an attorney. If you choose to go to mediation without an attorney, this is the way I’d recommend you do it.

You do not have to tell the mediator or your spouse that you have an attorney, if you elect to attend mediation without an attorney.

I would recommend you attend mediation with an attorney, as opposed to going to mediation without a lawyer and then planning to review any proposed written settlement agreement with an attorney. Telling your spouse you won’t reach agreement without first taking more time to review a proposed settlement with an attorney can chill the attitude of compromise and settlement.

Your attorney should, in my opinion, want to be at the mediation settlement conference to help you negotiate and negotiate quickly and fairly to a settlement.

Your husband claims he doesn’t want an attorney? No surprise there. Nobody really wants an attorney (unless perhaps the attorney is a big help and free of charge). My feelings aren’t hurt; attorneys have come to be viewed–accurately–as providing too little value for the money they charge. But not all attorneys are that way. You can find an attorney whose ROI (“return on investment”) is well worth it, and that kind of attorney is worth seeking and hiring.

I think people get it all wrong when they see “If you get an attorney, then I will!” as an antagonistic sentiment. Both parties having good (meaning skilled, knowledgeable, sensible) helps the negotiation process work better, faster, and inexpensively. Both parties make far better informed decisions. Bringing a lawyer to mediation should not have the same effect as would bringing a gun–and if it does, you and your lawyer are doing more harm than good to the settlement process.

Mediations aren’t a time to negotiate by threat (although there is nothing wrong with standing one’s ground and taking the position of “this is my bottom line: if this isn’t acceptable to you, I believe I will do at least this well, if not better, if the case goes to trial”–just make sure you really mean it and not use it as an idle threat; bluffs are easy to call). If you and/or your husband see hiring a lawyer as a threat, as a purely defensive move, then you are not wanting to win by settlement, you want to “beat” the other in settlement, and that is sure to result in anger, frustration, stalemate, wasted time, and wasted money.

Think through your objectives. Know what matters to you most. Think through the various ways to achieve your objectives; the more creatively you think the more likely you will be to find a way. Be honest. Be fair. Be flexible. Prepare a comprehensive settlement proposal well in advance of mediation and send it to you husband or his attorney, if he has one. Negotiation by ambush will likely result in a tremendous waste of time and money, and reduces the efficacy and likelihood of success in mediation and negotiation process.

Utah Family Law, LC | (801) 466-9277 | eric@divorceutah.com

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