What if my spouse does not want to mediate?

A common mediation Question: “My spouse does not want to mediate. He or she says that we already have agreed upon the terms of the divorce property settlement. He wants to hire an attorney for a flat-fee price. I want to mediate. What are my options?

Your spouse may not want to mediate because your spouse may see it as unnecessary. The agreement is “done” in your spouse’s mind. If the offer is “fair and equitable”, your spouse could be correct. The “fly in the ointment” is that your spouse may be viewing things through his (or her) own prism or may not have considered all issues. In the final analysis, the offer may not be “fair” to you (or to an attorney you have consulted). In that case, you could still negotiate the terms of the property settlement with the help of your attorney and still do it inexpensively provided that your spouse and attorney are flexible enough to accept a counter-offer or that the “back-and forth” negotiations do not require too many attorney contacts.

“Flat fee” quotations for divorce representation can be problematical because a case can easily move from a $2,000 “nominal” (uncontested) case to a $6,000 to $10,000 case (each) or more. I take it that the flat fee price assumes that you will agree upon the terms of the agreement quickly. When I wear my attorney hat, I do not give flat fee quotations unless and until both parties are represented by counsel and have reached an agreement; or, unless I have prepared an agreement on behalf of one person and the other has accepted it, with or without counsel. The fact is that many clients come in thinking that they have a “done deal” but once all issues are surfaced, they do not. While one person can decide not to engage an attorney, I never advise it. One attorney can never represent two persons with opposing interests, even if they are in agreement.

Mediation tries to assist the divorcing couple to reality-test the offers and counter-offers and to make certain that they understand all issues. We have a high rate of success in guiding couples through the process so that they reach a “Memorandum of Understanding”. That memorandum is then taken to an attorney to draft a Property Settlement Agreement (the contract) and to file all other papers to complete the divorce. Even in that case, we recommend that the non-filing person hire an attorney for at least the limited purpose of reviewing the contract prepared by the Plaintiff’s attorney.

So, my first recommendation is to mediate. It is like an insurance policy because it gives both of you some assurance that you will not end up in a contested divorce. The second option is that you hire your own attorney to review any and all offers from your husband and to negotiate in good faith. There is nothing in this second scenario that prohibits you and your attorney from reaching an Agreement at a reasonable price.

I would not recommend that you proceed without an attorney under any circumstances.

I can mediate for both of you as was originally intended. In that case his attorney can still represent your spouse during the mediation and post-mediation. It might be worth one session of 1.5 hours to discuss where both of you are in the process.

I can also represent you individually and negotiate with your husband’s attorney.