"My spouse has suggested that we try mediation instead of taking our divorce to court. Does mediation have any advantages over a traditional litigated divorce? How are my rights protected during mediation?"
The first step in protecting your rights during mediation is to assess whether your spouse genuinely wants to participate in the process. In many cases, mediation can greatly reduce the disruption and trauma your children will suffer due to your divorce, and each parent can and will become supportive once they realize the overriding importance of their children's well-being. But for mediation to truly work, each spouse has to be willing and committed to listen and give fair consideration to the goals and needs of the other. If this is not the case, you should strongly consider whether it's best to move forward immediately with the litigation.
A mediator does several things: interprets the needs of both parties; attempts to defuse hostility, infuse momentum and project a sense of fairness; acts as an "umpire" to prevent one party from coercing or bullying the other; explains the law and the rights of each party, and encourages reasonable and fair compromises. The ultimate goal of mediation is to reach a full and final agreement, and to resolve all of the issues arising in the divorce, including child custody and visitation, child and spousal support, and property distribution. The mediator then drafts a written agreement and presents it to each party, thus ending the mediator's role. Participants should then retain independent legal counsel to review the final agreement and to process the divorce on an uncontested basis.
Your strongest protection in the mediation process is that you aren't bound by the agreement(s) reached in mediation, unless it's in writing and it's signed by both parties in the presence of a notary public who acknowledges its execution. It's extremely important that you have the written agreement prepared by the mediator reviewed by an independent lawyer of your own choosing. This is your ultimate protection against an unfair deal.
If you change your mind before formally executing the written agreement, this isn't considered to be a breach of contract (as noted above, the agreement is not legally binding on the parties until formally executed). Your lawyer will first ascertain that you were aware of your rights and of the applicable law. If your lawyer is satisfied with this, he or she shouldn't question the terms and provisions of the written agreement unless something appears to be egregiously unfair or unconscionable. However, if there's a mistake (for example, you weren't aware or advised that a professional college degree obtained during the marriage should be construed as a marital asset and be valued and distributed), your attorney will intervene to protect your rights.
Your attorney will make sure the agreement contains all terms normally contained in divorce agreements. The agreement you reach in mediation will be put into the form of a written agreement, which should contain the standard provisions common to separation agreements as well as the unique provisions pertaining to your particular settlement. Before you formally execute the agreement, any problems detected by legal counsel for either party can still be addressed and resolved. It is important, therefore, that you obtain independent legal review of the agreement and give it careful consideration before signing it. Although the lawyer who reviews the written agreement is working to protect your rights, he or she generally doesn't try to upset the deal you made, in good faith, through the mediation process. In most cases, the written agreement, only drafted by the mediator will be subject to minor changes.
Robert F. Wayburn is an attorney at law and mediator in private practice in New York City.
Certified Divorce Financial Analyst
Business Valuators / CPAs