Mediation Before Divorce Can End Up Costing You More

Divorce is always expensive. You need to save money where you can. A great way to save money is to avoid novice mistakes with your uncontested divorce. One of the mistakes some people make is to try mediation before divorce. Well, this can end up costing you more money if you’re not careful.

Mediation in Texas

Mediation is an alternative dispute resolution process for lawsuits. Divorce, at the end of the day, is a lawsuit no matter how friendly it may appear. Mediation allows you to compress possibly months of negotiations into one day or less. That can save you a lot of time and money.

Mediation achieves this through its finality. After all, you’re not going to waste a full day’s worth of time and effort to reach an agreement that the other side can just tear up the next day. If you want an unenforceable agreement you can get that without paying the mediator’s fee.

When to Consider Mediation

If you look at some advertising from mediators you might get the impression you should begin with mediation. Why would they create that image? Simple, they want you to hire them.

If you ask any divorce lawyer they will tell you mediation is usually the last step before going to trial. It is not a process you open with. Why? Simple, your divorce lawyer has an obligation to protect you. One reason is there are a lot of unknowns early in a case. Since mediation is designed to end a case you don’t want to get locked into an agreement before you’ve turned most of those unknowns into known facts.

The Problem with Mediation Before Divorce

Mediation before divorce may sound like a good idea. This is especially true if one or both of you have no idea what the final terms of your divorce might look like. But it has one huge disadvantage.

Enforceability.

You go through the time and expense of mediation to come out with a Mediated Settlement Agreement. You want this because Mediated Settlement Agreements enjoy special protections and treatment in the law. Neither party can revoke a valid Agreement. The judge can even enter a judgment of divorce based on the terms of the Mediated Agreement alone. The other side can jump and scream that they changed their mind, and it won’t matter. The Agreement is final.

But you only get these benefits if you follow the rules. One of the rules for a valid Mediated Settlement Agreement is that the divorce lawsuit must already be pending. If you file for divorce after going to mediation and even signing something that calls itself a Mediated Settlement Agreement, do you know what you have? At best you have a contract, not a Mediated Settlement Agreement. You won’t be able to get a divorce judgement based on the document. Your Ex can revoke their consent to the contract. You don’t have much. You didn’t get your money’s worth for the endeavor.

Enforceable Mediated Agreements

So, does this mean mediation is bad or not worth doing? Not at all. I support it and use it when appropriate. Mediation does have its place as a tool for resolving issues. However, as detailed above, the final product needs to be enforceable if you want a meaningful resolution. When you engage in mediation before divorce you sacrifice the enforceability of any agreement you reach.

Speak with your divorce lawyer in The Woodlands to make sure you aren’t wasting your time and money on things like mediation before divorce and other bad ideas.

Highsmith v. Highsmith