How Early Mediation Can Impact Divorce Cases

I am often approached to represent clients after a mediation has occurred.  Most that approach their divorce this way do so in an attempt to work out most or all issues with their spouse without having to pay an attorney.  From a certain perspective, this approach can certainly make sense.  Divorce is often expensive.  And, if agreement can be reached early on some or all issues, that can certainly make the process simpler, less stressful, and less expensive.

However, many believe that what is agreed to at mediation can be easily undone later – that the parties can simply change their minds on agreed child support, visitation/possession, conservatorship, property use, or other significant aspects of the divorce.  This is not always the case.

For example, let’s say that one spouse believes the other spouse has the potential to be violent, believes the other spouse may be abusing drugs or alcohol, or engages in other conduct which may negatively impact the children.  Let’s then say that a mediation occurs before the worried spouse gets an attorney, and this worried spouse agrees to allow the other spouse unsupervised visitation.  The worried spouse may honestly do so for the sake of reaching an agreement and putting the issue behind him/her for the moment.  This spouse may also believe that he/she can then get a lawyer and have this agreement undone based upon his/her concerns.  This is not necessarily the case.  Agreements like this can be very hard, if not impossible, to undo.

Many courts believe that if there was any substance to the concerns, the agreement never would have been acceptable to the worried spouse.  Courts expect to see consistency in positions on issues when concerns such as these are raised.  If it was really an issue and there really was potential danger, the agreement never would have been acceptable.

Mediation is a valuable tool in helping spouses to divorce.  However, without the guidance of good legal counsel, a moment of weakness or exhaustion, an eagerness to get the divorce over with, or a sudden impulse can have devastating consequences on significant issues in your divorce.  The importance of consistency is often overlooked as a part of any divorce.  Consult an attorney before mediating your divorce.

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