“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.
As mediators, we all know that sometimes we need to level the playing field. In other words, supply information to the spouse that doesn’t have as much financial savvy so that they’re both on equal footing. Of course, that never happens, because you can’t thoroughly educate somebody in the short amount of time we spend with them in mediation sessions. But you try to do the best you can. Yes, you can bring in a financial professional, but most couples don’t want to pay for that.
Invariably what happens is the mediator tries to help the less savvy spouse. However, if you’ve been practicing long enough, you know that if you don’t try to level things out, years later you could get the phone call saying you’re being subpoenaed to court to testify because the deal was so unfair and one-sided that they’re trying to set aside the Agreement.
It’s a difficult situation for the mediator to be in, and I know we’ve all been there at least once. Some of us, a lot more than once. You’ve suggested things like:
- Would you consider dividing things a different way?
- Let’s explore some different scenarios on how we might go about that.
- Are you aware that you are really ending up with something way less than half, more like a third or a quarter?
- You may be fine with this now, but in a couple of years you may think differently.
I never want to get a phone call from a client saying, ‘You didn’t do your job. Although I understand a mediator doesn’t advocate for either client, you should have realized that I was emotionally unable to advocate for myself.”
When a mediator levels the playing field, can he/she avoid advocating for one side against the other? Please feel free to share your experiences in the “Leave a Reply” box below.