Welcome back to the RDK Divorce Group blog! In our last post, we busted several myths about mediation. Today, we’ll conclude by debunking a few more mediation myths.
Myth: If mediation fails and we wind up in Court, my ex will be able to use the things I’ve said in mediation against me.
Reality: In an “open” mediation, this is a legitimate concern, but in a “closed” mediation process, nothing that is said in mediation may be used by either party in subsequent Court proceedings. We have all of our clients sign a contract at the beginning of the mediation process, committing to a closed process and agreeing that nothing said in mediation can be used against them. This contract is binding and the Judge has to respect it.
Myth: Mediation replaces the need for lawyers.
Reality: Most ethical mediators, ourselves included, will encourage (but obviously can’t compel) clients to obtain independent legal advice at the end of the process, prior to signing a final separation agreement incorporating the terms agreed to in the mediation. Some clients also find it helpful to consult a lawyer before beginning the mediation process, in order to get a sense of their legal rights, and/or to have a lawyer in the background to consult with along the way. The level of lawyer involvement depends on a number of factors, including budget, complexity of issues, and degree of client sophistication.
Unfortunately, divorce lawyers have a bad rap for fanning the flames of conflict in order to steal people’s hard-earned money, and people try to avoid them like the plague; in reality, it is the system, and not most lawyers, which creates unnecessary drama. There are many ethical lawyers (especially collaborative family lawyers) who will respect your goals of efficient closure and who will be happy to spend 2-3 hours with you reviewing the draft mediation agreement at the end of the process, discussing it with you, and helping you finalize it in a manner which is respectful of the mediation process. Again, we can’t force people to have lawyers review their mediated agreements, but we do recommend it.
Myth: Mediators are too expensive. My ex and I are on amicable terms. We can negotiate our own separation agreement.
Reality: In rare cases where the issues are very simple, this may be true. But when you introduce the slightest complexity (children, finances), a DIY separation agreement can be extremely dangerous. There is a reason why mediators are paid for their skill and expertise; we at RDK have the necessary multiple professional designations and decades of experience to guide you expertly through this process and avoid all of the potential landmines along the way. We care deeply about our clients, but we are not personally involved in the emotional issues, as our clients are, and we can be objective. It can be extremely dangerous, in complex, emotional circumstances, to go it alone.
Unfortunately, we have had far too many clients come to us to clean up the messes they’ve created with DIY separation agreements. In these situations, we generally have to start all over, on the basis that someone felt taken advantage of, did not understand the agreement, and/or did not have legal advice at the time the agreement was signed. People are shocked when we share with them the basic tenet of contract law that agreements can be set aside or modified in any number of circumstances, including the ones we’ve just mentioned. Being forced to start all over again can have significant financial consequences and can lead to a lot of anger and resentment.
Mediation, done right, is a solid investment in a peaceful future. Our clients’ cases are completed efficiently, and they split our hourly rate in half. Compared to each person paying a lawyer for years on end, this represents a huge cost savings; unfortunately, this is one of the best-kept secrets out there.
We hope that we’ve helped dispel some of the common myths about mediation. If you feel that mediation could be right for you, contact us today and we’ll be happy to discuss your case further.
We’ll be back in a few days with a new post on how our unique interdisciplinary mediation system stands out from other mediation processes, and why we’re confident that RDK Divorce Group is uniquely positioned to give our clients the best possible guidance through one of the most challenging transitions of their lives. We’re excited to share more with you soon!