Divorce Mediation QuestionsThe following divorce mediation questions highlight some of the issues that may come up when you mediate your divorce settlement.
What is the best way to approach mediation? Marlene's Question: I am getting divorced after 25 years of marriage. We don't have that much, but I do have a pension and an a tax shelter annuity that I do not want to give up. We have a house that I feel we should split. We are planning on going to a mediator. Any advice for how to approach this? Brette's Answer: My book, No-Fight Divorce Should one spouse's lawyer be used to handle the mediation? Question: Can a lawyer hired by one partner then become the lawyer to handle a mediated divorce? Brette's Answer: In my opinion, that is inappropriate. A mediator should be a neutral third party. If that mediator has already had confidential communications with one spouse, then I don't feel he or she can be completely impartial. And even if he or she can, I don't think the other spouse can ever completely believe in the neutrality. If the non-hiring spouse wants to go along with it, that spouse should be asked to sign a waiver. » Return to top How do I change the mediation papers? Maria's Question: My husband and I went to mediation, I agreed to the terms, (i.e. based on his wages he would pay $300 month child support for 2 children). I have not yet received the mediation papers but feel if we went to court the judge would order him to pay more. How do I change the mediation papers, before we go to court. Brette's Answer: If you have signed a settlement agreement and it has been filed with the court, you will need to attempt to withdraw it, but that is difficult. If you have not yet signed an agreement, just don't sign the papers. » Return to top Topic: Are mediation agreements enforceable? Jessie's Question: I'm getting ready to go to trial Thursday for dissolution of marriage. We are fighting over whether or not I get the interest that was earned on my money that is in a money market account. He is now petitioning the court to enforce the original (voluntary meditation) mediation agreement, which did not state that I would be awarded the interest on the money. He has continued this case for 9 months and has gained more interest money. Will the judge enforce the mediation agreement or proceed with the trial? Can I take him to small claims court if the mediation is enforced to retrieve the interest? Brette's Answer: It sounds like you need an attorney who will help you with this. If he has earned interest on your money, you should be entitled to the interest. If you signed an agreement in mediation, it is probably binding. It's unlikely you can go to small claims court since a divorce decree is binding on all the issues in the case. You need to have your situation reviewed by an attorney who can tell you what to do next. » Return to top He lied during mediation. What can I do? Amanda's Question: If my ex lied to the mediator to win, and I found out it was a lie, can this affect the agreement? Will he get into trouble for this? What should I do? Brette's Answer: It depends on what he lied about. I also don't know what issues you mediated and if the mediated agreement became a court order, so it is hard for me to answer. If you mediated financial things, both parties are required to make full and complete financial disclosure. Failure to do so is a problem. I suggest you either talk to the mediator, or contact an attorney about your concerns. » Return to top What if my husband didn't go to the court ordered mediation? Leah's Question: We were scheduled for mediation to discuss visitation and child support, but he didn't come to the meeting or even call in to the mediator. Since this was court ordered mediation, how will the judge handle it? Brette's Answer: If the mediation was court ordered, you husband made a mistake in not attending. The court will not look favorably upon that. Topic: Appealing an unfair settlement agreement. Janice's Question: We went to mediation for our settlement agreement, and after 9 hours of negotiations, I was emotionally distressed. I told them that I wanted to leave, but they wouldn't let me until I signed what I thought was a summary, which was marked through with a red pencil. They filed it as the final document the next day. My expenses, based on what the paper says, exceed my income. Why would I have agreed to that? The judge finalized the divorce, and I wasn't told about it until 6 days later. Do I have a right to appeal to try and get that part changed? Brette's Answer: I'm disturbed by your situation. No reasonable mediator would go on for nine hours at a time with a tired client, no reasonable mediator would ask a client to sign an agreement she had not fully agreed to, no reasonable mediator would submit a final stipulation to the court marked through with red pencil. There is always the right to appeal any court decision, but I can't tell you what your chances of success are. I can only suggest you see another attorney to go over the entire situation. Ask for a free consultation. » Return to top Are mediation papers considered public record? Kimm's Question: Are the papers from our mediation hearings considered public record? Brette's Answer: No. However, a portion of the divorce records are.
Related Articles: Brette Sember is a former family and
matrimonial attorney and mediator, nationally recognized expert, and author of
many books including
The Divorce Organizer & Planner,
No-Fight Divorce, and
How To Parent With Your Ex.
This column provides general information about the various aspects of divorce. It is not intended to take the place of legal counsel and should not be considered personal legal advice. For specific recommendations concerning your situation, please retain experienced legal counsel. WomansDivorce.com and Brette Sember disclaim any liability from any claim arising from any information contained in this column. This column is not a substitute for legal advice. Divorce
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, will tell you
exactly how to approach mediation. There are lots of things you can do to get
ready, such as making lists, having preliminary discussions and also really
trying to get your head screwed on in the right way to approach it.
For more information about Brette, see 
