A mediation prospect came to see me yesterday and presented a common problem from my perspective. She was very eager to pursue mediation rather than to hire separate attorneys. However, her husband had not come with her to the initial consultation. He just told her, “Find a mediator, tell him this is the deal, and have him write it up.” He then told her what he was willing to do, take it or leave it. I discussed what he had proposed with her and gave her my opinion that she giving away the farm. My suggestion to her was that she and her husband make an appointment and begin the mediation process so that I could help them make a deal that recognized the rights and obligations of both of them and that sought a resolution that would be as fair as possible. She told me that he had told her that it was take it or leave it and that if she didn’t take it he would put her out on the street and she would get nothing. I tried to explain to her that was not how the law worked and that she had rights, but she was so frightened of her husband that she was consumed by fear and unable to think for herself. What is the point of this story? Mediation is not the solution for everyone. Yes, it is much less expensive, in the short run, that hiring separate attorneys. But she was willing to give away the farm, to take far less than she was entitled to, and to suffer into the future, rather than to stand up for herself. Mediation cannot be successful in that situation. In such circumstances the wife really needed separate counsel to represent her. That does not necessarily mean a scorched-earth litigation; it does mean that negotiation between equals required separate divorce attorneys for each of them. It is a myth that mediation is always the best approach. It can be, where both parties are seeking a reasonable and fair resolution, but it cannot work where one of the parties in a divorce insists on dominating the decision-making. It is fundamentally important to recognize when divorce mediation is appropriate and when a divorcing couple need separate counsel.
Divorce mediation and the need for separate counsel
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