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One Divorce Mediation: 2 Lessons

A divorce client called me for advice based upon dynamics of the ongoing divorce mediation. She said that the mediator, having prepared an initial draft of a Memorandum of Understanding, did not want to revise it based upon a recent development. The incident that caused the client to call was that the husband finalized plans for the kids to attend summer camp for 4 weeks and told the kids about it without discussing the same with the mother. Camp time interfered with her time with the children and she wanted input into the identity of the camp that the children would attend for the first time. The mediator suggested that the lawyers make the modification. Should she leave mediation and ask the lawyer to resolve that issue?

This presents two issues:

1. The agreement from the mediator should be all encompassing. The mediator should not force an agreement/Memorandum on clients if it does not contain all of the terms the parties want covered. The parties' lawyers should not have to renegotiate issues that can still be resolved in the mediation process. Once one lawyer starts negotiating over one issue, there is a tendency for the other lawyer to then renegotiate other issues. Lawyers do that. Then, the entire agreement is susceptible to being voided, leaving the lawyers to begin the litigation process and destroying whatever good will was remaining. Lawyers should only be required to add customary "legal language" to the mediated agreement, including clauses about estate waivers, whether there can be future modification, language about future potential defaults etc.

2. Should the wife argue now about the husband's actions of enrolling the kids in camp, even though it may be a positive experience for the kids? The problem lies in the fact that people learn that they can continue with inappropriate behavior, even decision making, where one person repeatedly gives in and allows the instigator to get away with it. If she allowed the husband to roll over her on this camp issue, he will likely continue this not only with other activities involving the children, but in other subtle ways. This is exactly the type of discussion that should take place in divorce mediation, before a neutral third party, validating the issue and controlling the line of discussion (people are usually somewhat more constrained with a third person involved). The neutral can slow the discussion down, so people use reasoning instead of the fight or flight attitude.

Steve Hirsch is both a litigating divorce attorney since 1978 and an experienced mediator since 1995. Call him at 401-352-1000 for resolving divorce issues.

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