With the onslaught of alternatives to litigation, clients often come in with agreements that they have reached through alternative processes, such as mediation. Unfortunately, in New York State mediation is an unlicensed vocation, and anyone can hang up her shingle and call herself a mediator. There are mediators that have training from intense seminars and classes conducted by experienced professionals, with certifications that require ongoing professional education, to online or short term instruction with little or no guidance. Further, someone needs no background in law, finance, accounting, or tax to be a divorce mediator.

Sometimes even with a seasoned attorney, there are problems with mediation depending on that person’s particular philosophy. There are mediators who try to bring parties to a reasonable and fair agreement, and those who believe that anything that two people can agree upon is fine, not taking into account the dynamics that one spouse may be a bully or that one person is so desperate to be out of the situation he will agree to any terms.

What often brings people to our door are agreements that are incomprehensible, unenforceable, or don’t provide for reasonable changes that may occur in a family as children mature, such as educational expenses.

While no one wants a “bad” agreement, that may be better than one which is unclear or unenforceable. Therefore, there are things to look for in reaching an agreement that you negotiate yourself:

  1. Be clear about your goals – These include property and debt responsibilities, and custody and support issues including basic support for children, health insurance, medical expenses, child care expenses, extracurricular activity expenses, and educational expenses.
  2. Do the right thing – Don’t enter into an agreement with the hope that the other person will “do the right thing,” even if it’s not required in your agreement. Maybe they will, maybe they won’t. If someone has been dishonest with you about money, nickeled and dimed you, or been a bad business partner during the time of your relationship, things are probably not getting better when you are apart.
  1. Understand what you are signing – If you have questions about the terms of the agreement and they are not plain on its face that is problematic. Make sure the mediator has brought you to a place that the language in the agreement is clear, concise, and understandable.
  1. Don’t sign anything! – The agreement that you are entering into is the most important document you will sign in your life. It is worth the investment for a consultation with a lawyer before finalizing any terms. I cannot tell you the number of people who would have saved a lot of time, energy, and money if they had paid for a few hours of my time to review the agreement, explain it to them, and make appropriate and often necessary changes, rather than fight about it after.
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