This writer has formed the impression that over time, people undergoing separation and divorce are more inclined to seek extrajudicial remedies. Typically, the menu includes mediation, arbitration and something called “collaborative divorce.” Arbitration is essentially an informal trial without a transcript where a neutral third party hears the parties out and then issues a written decision that is final. Collaborative divorce is usually reserved for cases where the assets are more complex and the parties agree to engage experts and lawyers at the beginning with the mission of achieving the most efficient distribution of income and assets.

            That leaves mediation. Two spouses sit in a room with a neutral third party and try to make a sensible solution themselves. The mediator is there simply to make certain the discussions are civil and focused although most mediators do try to have the discussions “follow the law.”

            Clients like the idea in concept. It certainly seems less expensive than litigation or arbitration and they like the idea, at least in concept, that they control the process rather than some judge or arbitrator they don’t really know. So, lawyers are asked a lot: “What do you think of mediation?”

            It’s a tough question to answer and the client has reason to be wary. In mediation, lawyers are supposed to have little if any involvement in the process. Most mediation agreements say that the lawyers are out until an agreement is formed and then their job is to review the draft agreement. It’s not in the lawyers’ interest to promote a process where he/she is not fully engaged and billing for the privilege, right?

            Unfortunately, it’s more complicated than that. Let’s assume a couple decided to mediate. They arrive in the room and the mediator says “OK, what are we dividing?” Husband says he has a pension with his employer and it’s worth $200,000. Wife says she has a $500,000 inheritance from her mom’s death four years ago. Then there are other assets in joint names worth $300,000. Let’s assume, you, the reader, has been appointed mediator. You aren’t suppose to get too involved but what result would you expect?

            Most people would say there’s $1 million so each get’s half. Other’s might say his pension should be his and her inheritance should be hers. Just split the joint assets. Suppose you just mediated and agreed to the even split of the whole $1,000,000. Would you like to have known that under Pennsylvania law that your inheritance was not a marital asset or that your relative incomes (yours/your spouse’s) might have produced a 60/40 split in your favor? If you were the dude with the pension would you like to have known that the part of the pension you acquired before marriage and after separation was off the table- not divisible in divorce? Some folks would respond that it’s not important- we had a chance to work this out ourselves. Most folks go “WHAT? How much did I leave on the table while trying to be nice?”

            The proliferation of web meeting software in the past few years may offer a useful alternative. Mediation would still proceed with the parties and the mediator live and in the room together. But each party would be permitted to have a lawyer “attend remotely” by watching the mediation. The lawyer and client could not confer during the mediation session. That could be too disruptive. But by remotely attending, the lawyer could explain, after the mediation session, the legal implications of the deal being forged. Example: in mediation the parties discuss that one spouse will pay the other alimony for five years at the rate of $2,000 a month. In Pennsylvania, if you had court ordered alimony and you cohabit, you lose the alimony. In a mediated agreement that rule won’t apply unless someone “writes it into” the agreement. Is that what the parties intend or can one spouse cohabit or remarry and still collect the alimony?

            One of the great frustrations for the lawyers- perhaps worse than being cut out of the mediation party- is the business of reviewing a draft mediation agreement negotiated over months that bears no relation to what the law says or a court would do. Yes, we can “adjust” language to clarify ambiguities. But, what do we say when the client asks: “How did I do in mediation?” It’s just not right to say: “You had your clock cleaned.” Now the client thinks you left them exposed by letting them mediate and/or you are bitter because you missed trying the case and earning all those legal fees.

            There are other elements a lawyer can’t usually size up when being asked about mediation. The first is the relative financial sophistication of the parties. We recently have been involved in a matter where a homemaker decided to mediate with a spouse who was a lawyer. The assets included several defined benefit pensions, stock equivalents and college financing for the minor kids.  You can probably guess who got the short end of that arrangement. Then there are issues of dominant vs. submissive personalities. If you are the submissive type or the family “peacemaker” mediation may not be your optimum choice. The difficulty is that when the lawyers are dealt entirely out of the mediation process, the parties come back with a term sheet that can either create or amplify problems or be entirely unfair. Meanwhile the parties have spent months negotiating these terms and if one party “blows up” the deal, there is usually a world war on the way.

            The better course here may be what the beer companies would dub “Lawyer lite”, a low calorie brew from the legal services standpoint but enough punch to make certain that no one takes advantage of the mediation process. For the vast majority of clients, a divorce will be the largest financial transaction in their lives. They have good reason to want to be hands on and in control of the process. It is their lives and their money. But, why eschew expert help in this process if the risk is a catastrophic transaction?