Consult with An Attorney before Divorce Mediation

Some mediators advertise divorce mediation as a way to cut through the grueling and expensive process of litigation. They are usually right, but sometimes this shortcut also comes at the expense of your own personal rights. Before you mediate, you should consider the following three warnings about mediation:

A mediator is not your attorney

It is almost always worth consulting with an attorney before you agree to give up any of your personal rights. This is true of mediation as well. The mediator cannot consult with you. Even if the mediator is an attorney, his or her role is to settle the case. He or she cannot advise one party against the other. Advising one party would make the mediator an attorney for that party. That would create a conflict of interest for the mediator.  Utah Rules of Professional Conduct 1.7(a)(1) disallows an attorney from representing two clients adverse to each other.

Know your rights

If you go to mediation without consulting an attorney, you may give up legal rights. You may assume that the court will not give you half of the marital assets. Also, you cannot have access to your spouse’s retirement.  And your spouse may be entitled to part of your yearly bonuses going forward. When dealing with important legal rights, you should consult with an attorney before entering into a binding settlement.

Protect against non-disclosure

If you go to mediation directly before any due diligence, you may not have all of the facts that you need to make informed decisions. Litigating is an expensive process, but conducting basic discovery can be relatively inexpensive. It is not expensive to send out subpoenas, to ask the other party to answer basic questions under oath or to ask the other side to produce basic records showing the debts,

If you go to mediation directly before any due diligence, you may not have all of the facts that you need to make informed decisions. Litigating is an expensive process, but conducting basic discovery can be relatively inexpensive. It is not expensive to send out subpoenas, to ask the other party to answer basic questions under oath or to ask the other side to produce basic records showing the debts, income, and assets of the parties. When you ask a party under oath to disclose assets, and he or she fails to do so, you will have a basis in fraud to set aside a resulting order. In contrast, a hasty decision made in mediation without the benefit of due diligence will not give you this same ability to challenge the order that comes out of the mediated settlement.

A Warning To Consider

If you go to mediation directly before any due diligence, you may not have all of the facts that you need to make informed decisions. Litigating is an expensive process, but conducting basic discovery can be relatively inexpensive. It is not expensive to send out subpoenas, to ask the other party to answer basic questions under oath or to ask the other side to produce basic records showing the debts, income, and assets of the parties. When you ask a party under oath to disclose assets, and he or she fails to do so, you will have a basis in fraud to set aside a resulting order. In contrast, a hasty decision made in mediation without the benefit of due diligence will not give you this same ability to challenge the order that comes out of the mediated settlement.

Cameron JohnsonConsult with An Attorney before Divorce Mediation