Divorcing parties who enter Divorce Mediation are generally advised by their mediator to have the final agreement reviewed by their separate attorneys before signing. For the client who wants additional assurance that the agreement coming out of the Divorce Mediation process is equitable, having separate counsel review it prior to signing can address that concern, if the reviewing attorney is involved at the beginning of the case.
Since it is only the client and not the attorneys who actually take part in the actual mediation sessions, the challenge in reviewing the parties’ final agreement is that the attorney was not privy to all the considerations and detailed information that led to the final decisions. And, to do the research and duplicate all of document reviews and analysis that occurred in mediation is not cost effective and it defeats the purpose of efficiency built into mediation, as well as the focus on client centered decisions that characterize divorce mediation.
However, what the reviewing attorney can do at the outset of the mediation and continuing through the mediation process is to pay special attention to the viability and integrity of the process being conducted by the mediator. This will do as much as anything to assure that the outcome of the process will result in an equitable outcome.
Several examples of this are these:
If there is a residence to be purchased by one of the parties, what is the process used to ascertain a current residential market value and how will the amount of the buy-out of the other party’s equity interest be determined. Are the parties’ going to decide themselves the residential value, will a market analysis be conducted or will an appraiser be hired to place a value on the residence? And, once the residential value is determined, what formula will be used to arrive at each party’s marital interest? Each way of proceeding has its own considerations for an equitable outcome.
Another example concerns the valuation of a professional practice or a business. This asset could be the most significant one owned by the parties, and how its’ value is arrived at is of import for each party. Do they decide themselves, is there a standard formula that can be used to determine value or will a business valuation expert be hired to analyze and value the professional practice or business? Each of these ways to arrive at a value has its own challenges and the mediation client must be fully informed about the consequences of using each of the methods.
If the case involves spousal maintenance, and because the payment of spousal maintenance has tax consequences for each party, how will the mediator go about helping the parties know what might be the actual net dollar discretionary amount of varying amounts of monthly spousal maintenance payments? Do the parties decide themselves, does the mediator make suggestions or is a financial expert brought in to help the parties know the tax consequences of their decision?
These are just a few examples of what a reviewing attorney needs to consider at the outset of the Divorce Mediation to be sure the integrity of the process is solid. If so, the reviewing attorney will be in a position to know whether the way the mediation is being conducted is viable and will allow for a fair result.