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For years, I’ve heard that some non-attorney mediators write their own settlement agreements. When I first started a mediation practice, my partner was an attorney, and we’d mediate together. Although I would write certain parts of the settlement agreement, she often modified the language and always reviewed the agreement before it was sent to the clients.
As the years went on I became a sole practitioner, writing memorandums. My memorandums would then go to an attorney and the attorney would write the legal agreements.
Although I’ve participated in the writing of over 1,000 agreements, when I send out my memorandums to the attorneys, I sometimes have my language rewritten, because the settlement agreements really need to be written from a litigation perspective. If the agreement was brought before a judge, would the intent of the sections of the agreement be clearly understood?
I was recently emailed a 65-page Settlement Agreement by an unhappy couple. They said that the mediator who created the Agreement was horrible: He had produced this incredibly long Agreement, but they still had tons of unresolved issues.
They explained that the odd part was that the husband and wife were in complete agreement on everything. However, a week or two after they had been in to modify the Agreement for the third time, the mediator called them and said, “I’ve discovered more issues. You have to come back.”
They said, “We used the services of this mediator to create our Settlement Agreement.”
I asked, “Do you mind telling me who it is?” Continue reading
“We don’t want anything to do with lawyers. We will not have lawyers review the Agreement. We hate lawyers. We know what they do in divorce cases. We don’t want any part of that.”
Unfortunately, the spouse that’s the most vocal about this is usually the one with the most money. The moneyed spouse doesn’t want anybody reviewing their Agreement. They usually have the financial savvy, where the other spouse doesn’t.
Is it because Judges think that family matters should be settled in court by a Judge who doesn’t know the family?
Or is it because Judges think that no cases involving families going through divorce are appropriate for mediation?
Some states have a mandatory mediation program, where the Judges understand that you don’t drag the kids into court if you don’t have to. Instead, they believe, because of the children, couples should try to enter into mediation to see if their problems can be resolved peaceably. Remember, these parents are going to co-parent their children after court.
I shouldn’t fault attorneys that don’t understand mediation. When they attended law school, they weren’t taught about mediation or alternative dispute resolution. Attorneys are trained in dispute resolution now, and I have been invited and have spoken at several law schools on the topic of mediation.
Law schools trained lawyers to do what lawyers do: Argue, get evidence that help them argue and then argue some more. Just the opposite of mediation, right? That is why our professions are so different.
As a mediator, I try to help couples resolve their disputes by cooperating and working together.
Usually, I only ask for retainers when there is a lot of work to do by phone. In situations where it is counter-productive for the husband and wife to be in the same room together, speaking to them separately by phone is a necessity, including calls to their attorneys, in order to move things along.
I once had a case where I told the client, “I don’t usually charge for emails and phone calls.” The client started emailing me regularly. By the end of the month, I had received 83 emails, and had a better understanding of why some mediators charge for emails and phone calls.
When addressing basic child support (food, clothing and shelter), mandatory add-ons, and discretionary expenses in the Settlement Agreement, we say, “While there is no statute directing you to pay for your child’s college education, something like a SUNY clause, capping your contribution to education at a State University of New York tuition rate, is an obligation most parents and courts are comfortable with.”
“So if I’m paying for room and board at college, why should I pay for room and board at home? Isn’t that paying twice for the same thing?”
Generally, most attorneys will say, “Double shelter allowance. My client should get a reduction in child support for their share of room and board expense at college. Why should my client have to pay room and board at the home where the child is not living when they are living at college?”
I recently got a response to one of my blog articles from a mediator who said, “Of course, I know all about this. I’m a mediator. I know about everything in divorce and everything related to people’s feelings. That’s who a mediator is.”
Early in my career, I co-mediated with an experienced attorney. We worked together for several years and thought we were doing a really good job. We had successfully mediated hundreds of divorces.
I still remember one couple that we worked with. The wife was absolutely beautiful; the husband was kind of an average-looking guy. We talked to them for a while and it was clear that they both wanted to get divorced. The wife started talking about how her life was all about the kids and how devoted she was to them. She also mentioned that the husband worked all the time and the reason the marriage was breaking up was all his fault. She was cleaning the house and being a good mom and trying to work with her business partner to build a business.
Recently a prospective client called and asked for some advice. She was wondering if her agreement needed to be modified. And could I help her? She had been divorced for several years and her ex-husband had recently passed away. She was wondering if she was still the beneficiary of his pension and therefore upon his passing, could she receive all of the survivor/spouse pension benefits? She spoke to someone in the HR Department at her ex-husband’s company, who told her that since her divorce she wasn’t the spouse any more and although she was once listed on the designation of beneficiary form as beneficiary, the company didn’t recognize that, because since the divorce, she was no longer a spouse.
I asked her if she had a copy of the divorce decree and what does the separation agreement say.
She said, “We didn’t write a separation agreement. We didn’t want to spend the money on mediating this or hiring an attorney to draft the agreement so we just did it ourselves.”