# Mediation without lawyers - good idea?



## believer (Apr 22, 2008)

Ugh - I have been in the divorce process for over a year & ready to get things moving. Hired a lawyer last year but it would be weeks between our meetings/conversation before she would get back to me. I kept thinking we are almost there & didn't switch lawyers. Finally in July, hired a new lawyer to get things moving again. 
I filed the paperwork with the court & my husband was served - so it at least got things moving with time tables involved. We are in the process of financial disclosure. We both filled out our financial affadavits but my lawyer encouraged me to go thru his with a fine tooth comb -which I did. Did he exeggerate his expenses - absolutely- it is probably worth fighting over - not sure? Of course I want to get what is mine & divide our finance fairly but feel somewhat that the lawyers are pushing us to fight it out more than it needs to be. 
Because husband did not provide the financial info in timely matter my lawyer asked for more detailed financial info - 3 yrs worth of paperwork & then his lawyer did the same. 
I am hoping that if my husband & I can argree that we don't need all that extra paperwork from each other we can nip this tit for tat in the bud & keep the process on track. 

We get along & can be civil to each other & think are on the same page with most or our expectations regarding the kids - we have been seperated for 2 yrs now. 
The finanical part may be a little more complicated because I want the house, his car loan is in my name, he owes me money from when he was unemployed after our seperation, etc. 

I was considering going to mediation on our own - trying to finalize the details of our parenting plan & finanical agreement. Then before either of us sign -we get our lawyers input & possibly work out a few more details. 
But I am not sure if spending the time & money with the mediator 1st make sense if the lawyers are then going to recommend we undo various itmes & then have to rework them. 
Another friend of mine going through divorce is doing this -where she has only seen her lawyer a few times & is dealing more directly with the mediator. 

Any suggestions from anyone's past experiences?


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## Darren (Nov 8, 2010)

Believer, 

I'm a third year law student, so I will make this very clear: _this is not legal advice in any way, shape or form._

That said, I have a fair amount of experience in matrimonial law and divorce mediation. I spent months in clerking for a judge in Nassau County (New York) Supreme Court Matrimonial Part and also observing divorce mediations. I also spent months co-mediating employment discrimination cases at the US EEOC, which is often compared to divorce mediation. 

My advice is this: if you can avoid litigation, do so at all costs. If it feels like your attorney is pushing for litigation, there may be a number of reasons for it. First, your relationship with your husband may be so dysfunctional that the two of you cannot work out your disagreements. Second, there may be such an imbalance of power between you and your husband that it is likely that any agreement reached in mediation will be unconscionably unfavorable to one side. Third, your attorney believes that your divorce involves a unique legal question that should be brought before the courts to create precedent. 

Your attorneys may prefer litigation for the sheer reason that it is more profitable for them (at least financially. trust me, the emotional cost on attorneys is also high). But another reason may be this: your attorney may not be familiar with mediation. Some attorneys are more comfortable in a courtroom, where there is no in-depth discussion of emotions and needs. The courtroom is not a place where litigants vent their frustrations and find closure, it's a place where the law is applied to litigants. 

Short of those reasons, I can't see why anyone would want to go through the long, expensive, and emotionally draining litigation process. Mediation allows you and your husband to decide the terms of your divorce, rather than putting yourselves in the hands of strangers. The judge has a duty to apply the law, not to look after your best interests. 

There is a lot to be said about mediation, but I will leave you with this: _make your interests clear!_ Make them clear to the mediator, to your husband, to your attorney (yes, make ABSOLUTELY SURE that your attorney reviews any agreement before you sign it, especially if your attorney doesn't go to the mediation). You say that you "want the house, his car loan is in my name, he owes me money from when he was unemployed after our seperation, etc." These are positions, not interests. Those involved in your divorce need to know why you want these things. Mediation gives you the opportunity to explain your interests to your husband AND FOR YOU TO HEAR OUT HIS INTERESTS. There is a tendency for people to feel that if they are talking, they are in a position of power. But the reality is, information is power; and you only have information if you listen and ask the right questions. If you both understand why you want certain things it will be much easier to reach a fair compromise. A good mediation is where everyone walks away a little unhappy, but that's the nature of any dispute negotiation (divorce mediation is just assisted dispute negotiation, after all). But if you still think that litigation may be the way to go, I suggest that you take a day to sit in your local matrimonial court and watch proceedings for a few hours. So far, the longest ongoing divorce I've seen has lasted 13 years. Let me know if you see any record breakers. 

If you have any questions I'll be happy to help to the best of my ability. Best of luck!

Darren


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## believer (Apr 22, 2008)

Hi Darren - thanks for your legal input. My lawyer has continued to mention mediation & even when I met consulted with her, she said she felt our case could be settled there. 
What I was trying to get input on is when meeting with the mediator ( date to still be set) would people recommend meeting with mediator & both my husband & I & our respective lawyers - making for a very expensive meeting 
Or because my husband & I feel are pretty close to agreement on most items that I thought we might consider meeting with the mediator ourselves & drawing up what we felt was fair agreement but then taking the agreement back to our lawyers for review before signing anything. 
My concern with that approach is that each lawyer may dig into what we worked out & then we have have to go back to the drawing board again -which may end up taking more time & money to re-work & it might have been better to do it that day with all of us present. 
Does that make sense? 

I think I had mentioned that I had retained a lawyer last Dec. that she & I wrote up a proposed parenting plan which my husband has seen, made comment to & we adjusted several of his requests. However, he did not have a lawyer review that document & nothing was signed but it is a draft to begin the mediation process from. 

Before mediation - I plan to make a priority list of the items that matter the most to me & push hard for my terms for those items. Other items I will be more flexible on so we can come to a resolution. 

I tend to be "too nice" and sometimes feel sorry for him ( although he got himself into this mess with his infidelity & additional financial commitments due to a child from his fooling around) - that is where I feel it might be helpful to have my lawyer there to help me be strong & not give in too easily. 
I have kept detailed records of his payments of child support( amounts, check #'s, etc - as well as dates that he did not pay due to his unemployment) which at the time I said he did not have to pay me (now) because the alternative was that he wanted to move back in & I definitely did not want that. 
Our situation is a little unique in that I had filed a petition for child support without dissolution of marriage back in Feb 08, prior to him moving out while I still was determining if I would file for divorce or try to save our marriage. So I currently have an oder for support & within in that order some loose quideline for parenting related items. We have been able to work together for the most part to raise our children it has gotten a bit more complicated since his girlfriend has entered the picture. 

One more question - how important is his financial affadavit in terms of accuracy. Did he inflate his expenses, absolutely & definitely added in $20 here & $20 there, etc. But I want to know in the big picture - is it worth calling his bluff on that & asking for a revised version if I feel not accurate when in the end it might be a couple hundred dollars difference. How much weight is given to affadavit? I understand that child support is calculated by a worksheet based on both our incomes ( or at least here in FL) so the financial affadavit's additional info. might be helpful in negotiating other items within the maritial settlement. How picky should I be in reviewing his financial affadavit? 

So recapping - I do not plan to have to litigate & am confident we can come to a resolution with the mediator. So any further tips on the mediation process are welcome. 

Thanks in advance!!


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