Mediation: An Excellent Divorce Solution … Unless You Get the Shaft

Husband and Wife have had a stormy relationship for some time.

Their lives are far removed from the legal system.

Their resources are modest.

They have a Toddler and an early Teen.

Wife decides to divorce. Wife hires a divorce attorney.

Husband does not.

Eventually, the Court orders mediation by a courthouse-employed Mediator, before trial.

Wife goes to mediation with her attorney.

Discussion turns to visitation and timesharing.

Wife states that Toddler should not be away from Wife overnight, in fact, not for very long at all.

Wife’s attorney agrees.

Mediator then agrees.

Wife’s attorney states that Court won’t “impose” visitation and timesharing on Teen.

Mediator agrees that Teen will just do what Teen wants, so there’s no point in addressing timesharing with Teen in a settlement agreement.

Husband looks slowly around the conference table.

They all agree, he thinks silently. I guess I should … have to … agree.

Husband’s head nods agreement, but Husband’s heart silently protests.

Mediation runs long, so no agreement is signed that day. Fortunately for Husband.

Here is the untold story at mediation …

Husband has always worked evenings. Wife has always worked days.

Husband is the one who wakens the children every morning and gets them into their daily routine.

Husband and Toddler shuttle Teen to school on weekdays.

Husband takes Toddler back home and remains with Toddler until Toddler and Husband leave to pick Teen up from school.

Husband is the one who interacts with Teen’s teachers at school on a routine basis.

No need for daycare for Toddler. Husband is with him.

Husband is the one who takes Teen and Toddler to the pediatrician, the dentist, shopping for clothing and supplies, etc.

Husband is the one who chauffeurs Teen and Toddler to their daily activities.

Husband is the one who does activities with Teen and Toddler on weekend days, while Wife works.

In other words, from Teen’s and Toddler’s perspectives, Husband has been the “at home” parent, doing all the things an “at home” parent generally does.

Had Husband signed an agreement reflecting what Wife, Wife’s attorney and even the Mediator seemed to favor, Husband would have fared much worse in the settlement than he almost certainly would have fared in court.

Yes, Husband might have saved a lot of money by settling as the other participants steered him, but he would have lost out on having any further real relationship with Teen and Toddler.

Husband would have gotten the shaft.

Unfortunately, mediation horror stories are recounted to me regularly by people trying to cope with the aftermath of entering a bad settlement.

Mediation can save spouses money, time and bad feeling. Read more about that aspect of mediation in this press release by a mediator: Mediation: Affordable Bridge from Marital Strife to Happy Life.

But that’s true only if you don’t get the shaft.

Don’t misunderstand. Bad outcomes don’t make mediation a bad tool.

But it does make mediation potentially very dangerous for the unwary and untrained.

Ways to improve the likelihood of a fair and reasonable settlement at mediation:

  1. having an attorney of your own to represent you at mediation

  2. if you absolutely can’t afford that, the next best thing is to have an attorney of your own review any proposed settlement agreement and advise you on it before you sign it – afterwards is too late

  3. if you absolutely can’t afford even that, it’s still better than nothing to at least consult with an attorney about your rights prior to your mediation

Bottom line: do yourself a favor. Don’t get the shaft. In the long run, that will cost you – and perhaps your children – a lot … in both money and grief.