Divorce Mediation Questions
The 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 , 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.
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:
How Divorce Mediation Works
The Benefits of Divorce Mediation
Also see:
More questions and answers
Ask the Legal
Expert a question
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.
For more information about Brette, see www.BretteSember.com.
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.
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