Why You Should Have Counsel Before or During Mediation


Mediation offers many advantages over litigation.  Mediation is far less expensive, occurs at the pace you choose, allows you to reach creative solutions tailored to your own lives, and leads to outcomes that are generally more sustainable than court-ordered outcomes.  However, if you choose mediation, you should do it right.  The right way to pursue mediation is to consult counsel before or during the mediation process.


As I’ve mentioned previously on this blog, the mediator is a third party neutral who cannot offer legal advice.  So, in order for you to know your rights under the law and properly strategize arguments and approaches to obtain those rights, you need to meet with separate counsel.  It’s important to talk to that counsel before or during the mediation, not after.  If your attorney gives you advice pre-mediation, you will have an informed approach to mediation and effectively use the mediation time.  If you attorney gives you advice post-mediation, you may realize that you want to back out of the agreement you just reached in mediation, which would be a waste of your time, your spouse’s time, and the expensive mediator’s time.


Some clients believe that they can read the law themselves and do not need an attorney at all.  Beware!  At the uncontested hearing, when the court decides whether or not to approve your Separation Agreement, the court will ask if you had the opportunity to consult counsel.  If you answer negatively, the court will examine your Separation Agreement with extra scrutiny because it will be less likely to be fair and reasonable.  Again, everyone’s time will be wasted if the court refuses to approve the Separation Agreement. 

College Contribution


If you and your spouse have minor children, you should consider their future college education costs.  There are a number of creative ways to provide for the payment of those expenses.  Here are a few:


1) The child shall make a good faith effort to apply to all potential grants and scholarships.  The parties shall then pay the remainder of college education costs proportionate to their incomes.


2) The child shall make a good faith effort to apply to all potential grants and scholarships.  The parties shall then pay the remainder in equal shares.


3) Wife shall be responsible for 1/3 of college education costs, Husband shall be responsible for 1/3 of college education costs, and Child shall be responsible for 1/3.


4) One party agrees to pay the entirety of college education costs. 


5) Use a public school as a reference point.  For example, one party agrees to pay the total amount of college education expenses not to exceed the cost of attending UMass-Amherst for four years.  The child shall be responsible for all costs beyond that.


Be careful.  If your children are very little, you might be negotiating in the dark because you do not know the many things that may happen between now and the moment your child enters college.  Be sure to consult with an attorney to draft an agreement that meets your financial best interests.