Episode 32 Transcript: Who Should Draft Your Agreement in Divorce Mediation?

In today’s mini episode, we’re going to be talking about, for couples who are in mediation, should you have your mediator draft your separation or your divorce agreement?

This is a question that comes up for couples who are working not just with a mediator, but they’re also working with consulting attorneys outside the mediation process, because for couples who are only working with a mediator (an attorney-mediator, that is), and not working with other attorneys, the obvious conclusion for them when the mediation ends is going to be to have their mediator draft the contract because they’re not working with any other attorneys who can draft the contract for them.

However, where one or both spouses, often both spouses, are working with attorneys outside the mediation, sometimes they will raise a question as to whether or not they should have the mediator draft the contract for them and have their attorneys review it, or just have their attorneys draft the contract from the outset.

So, a couple of thoughts there. First of all, it’s important to know, if you’re in mediation, you never have to have your mediator draft your ultimate contract. What you can ask the mediator for is a term sheet or a summary of terms at the end of your mediation that summarizes the agreements that you’ve made in the mediation, and you can bring that summary of terms to an attorney to draft the contract for you based on those terms. That’s always an option to you.

Well, why would somebody ask a mediator to draft? I think for a couple of reasons. One, there is reassurance for both people in the fact that the mediator is neutral. They’re not, in their drafting, going to be attempting to benefit one spouse over the other. They’re going to be very even-handed and look to really reflect the agreements that you’ve made and that are recorded in your term sheet or your memorandum of understanding, to reflect those agreements in the ultimate contract.

I think the other benefit that draws people to have their mediator draft their contract for them is that the mediator has worked with you. They know you. They know your story. They’ve heard you describe your different assets and the parenting schedule you have and all the different details that, on the one hand, they are reflected if you do a term sheet or an MOU (memorandum of understanding), they are reflected in that document, but there’s more of a depth and a richness to the mediator’s understanding of your situation because they’ve actually sat in the room with you and heard first-hand from both of you about whatever issues are going to be reflected in your ultimate contract.

That said, some people feel that the downside of having their mediator draft the contract for them is that it creates additional work, given that they are going to have their attorney, their own attorney, review that same contract. So, from their perspective, they would rather have their attorney who’s going to review the mediator’s draft just draft the agreement. Now, as you may already have figured out, there are two spouses in a mediation, both of whom, in the situation I’m talking about, both of whom have an outside attorney. So, whose outside attorney gets to draft the contract? And that’s something for the spouses to negotiate. Sometimes, they’re not able to negotiate it, in the sense that both people want their attorney to draft the contract, and they end up, for that reason, saying, “Okay, we’ll just have the mediator draft the contract.”

At the end of the day, I think you have to really feel out what’s right for you in terms of who you want to draft your separation or your divorce agreement after your mediation process. I don’t think there’s a hard and fast right or wrong answer there.

I do think that a reviewing attorney spends less time reviewing a document than they do drafting it. So, it’s not exactly that if you pay the mediator to draft the document, you’ll then pay your own attorney the same amount of hours to review it as you would have paid your attorney to just draft the document. I don’t think that’s the case, but I do understand that if spouses can agree that one person’s attorney will take the lead, maybe they are saving an hour or two of drafting/review time, but I’m not positive.

At the end of the day, for many spouses, in the context of what they are agreeing to and in the context of the substantial costs of the divorce process, saving one to two hours of time is not really worth it to them. But that’s ultimately a decision that you and your spouse have to make for yourselves.

So, that’s it for our mini episode on having your mediator draft your agreement. I hope this was helpful for you.


Episode 33 Transcript: Outside Attorneys in Divorce Mediation

Episode 31 Transcript: Self-Employment + Spousal Income in Divorce