Most clients even if they mediate their
divorce will benefit from having their own private attorney review the proposed
agreement and suggest modifications. The quality of divorce mediators
is very diverse so I never know until I see the proposed agreement whether
it will be comprehensive, fair and clearly drafted. Some divorce mediators
are attorneys and some are not. If the mediator is an attorney they are
authorized to draft the agreement. If the divorce mediator is not an attorney,
the parties will be referred to an attorney who will draft the agreement
based upon the mediator's notes or memorandum.
Even where the mediator is an attorney they will almost always suggest
that you obtain your own independent review by an attorney whose loyalty
is solely to you. An experienced divorce attorney will immediately know
if the agreement appears to be well written or whether it will need much
work and revision.
There are many different ways to express provisions in an agreement and
most clients, since they are not attorneys, will not know what the alternatives
are. Therefore, what may sound good on paper may not be complete or perhaps
should have been drafted in a very different manner. For example
joint custody language can be very brief but really should not be. There are numerous
provisions that should be included beyond merely saying the parents will
consult with each other regarding decisions affecting the children. The
child support and college provisions are important as is the decision whether to contribute
to extra-curricular activities, which often is not a requirement.
An experienced divorce attorney will help you conclude with a clear agreement
that is less likely to be challenged in the future due to missing provisions
or unintended consequences. At a minimum, people using divorce mediators
should obtain an independent review prior to signing the agreement.