The role of lawyers in mediation

We recommend that couples have the agreements they reach in mediation reviewed by attorneys and written into a contract called a separation and property settlement agreement. Most mediators will provide a written summary of agreements. But a summary is not a contract and may not be enforceable if one side doesn’t live up to her or his end of the bargain and the couple goes to court.

Advantages of review by a lawyer

Having an experienced lawyer convert your mediation summary into a contract ensures that (1) your mediated agreements are legally binding (because in North Carolina, there are certain formalities that have to be satisfied to have a binding contract between spouses), (2) the terms of the deal are clear and unambiguous, and (3) the agreement is enforceable (things like waivers of rights and claims and indemnification provisions are important) if there is a breach.

Many couples also choose to have lawyers review the mediation summary to satisfy themselves that they are not making a bad deal and have not overlooked anything in their negotiations.

When interviewing a lawyer, you should try to determine whether the lawyer respects the principle of self-determination. Many lawyers are paternalistic and will advise you based upon their own perceptions of fairness and what is obtainable under the law.

You and your ex are in the best position to know how to divide your property and how best to care for your children. The law provides a set of minimum standards for judges to apply when making decisions for people who cannot agree. In mediation, those minimum standards are one of many factors couples can evaluate when making decisions for themselves. Creative solutions are encouraged. A good lawyer will help his client explore the viability of the client's proposed solution in different scenarios, provide advice and information, and draft appropriate contract language.