Mediation Traps

In general, I am a big proponent of mediation.  Mediation saves money, is efficient, and allows parties to reach a resolution that is individually tailored to their family.  However, there are a few shortcomings of mediation:

1) Often, people who choose mediation wait to file their divorce complaint until after the mediation is over and they’ve reached a Separation Agreement.  Since mediation can take months or years, they sometimes end up filing their divorce complaint nearly a year after they intended to be divorced.  This is problematic for alimony.  In Massachusetts, the duration of alimony payments is determined by the length of marriage, as defined by the date of marriage until the date of filing/service of the divorce complaint.  In other words, a manipulative party can deliberately delay mediation in order to obtain alimony for a longer term…  Solution: Hire an attorney to file for divorce before you begin mediation. 

2) Some mediators do not require the parties to complete financial statements prior to mediation.  This means that parties can negotiate a Separation Agreement blindly.  If you never see your spouse’s financial statement listing his/her hidden retirement investments, how can you negotiate for your marital share of that retirement investment during mediation?  Solution: Demand that both you and your spouse exchange completed financial statements (and supporting documentation) before mediation. 

3) The brilliance of mediation can also be its greatest weakness.  In mediation, the parties are not limited to the solutions available to them by law.  They can brainstorm solutions that the courts would never have conceived.  At the same time, without counsel during mediation, the parties might never realize the solutions available to them under the law, such as the Child Support Guidelines or the new alimony law.  It would be a shame to settle for less than you’re due, simply because you did not know what you could have gotten through the court!  Solution: Bring an attorney with you to mediation. In many cases, the attorney will save you considerably more money than you pay the attorney. 

Leave a Reply