When Connecticut couples divorce, some choose divorce mediation, a non-adversarial and considerably less costly alternative to litigation. With mediation, you and your spouse hire a neutral third party, or mediator, who does not render a decision, but who facilitates discussions between the two of you to help you arrive at what is known as a separation agreement. While mediators are often attorneys, you have the option to hire a non-lawyer mediator. However, this is inadvisable, as non-lawyer mediators lack the proper education, qualifications, licensure, and experience to guide parties efficiently, accurately, and effectively through a divorce mediation.
How Does Mediation Work?
In mediation, the mediator meets with you and your spouse to guide you in reaching a mutually acceptable agreement regarding all matters concerning your divorce: property division, alimony, legal custody, parenting plan, medical insurance, tax returns, and allocation of your personal property. You and/or your spouse may each hire your own attorney to serve as independent review counsel, but this is optional. After you sign the separation agreement, it must be filed with the family court and reviewed by a judge before a legally binding divorce decree is issued.
Divorce Mediation Requires Legal Expertise
When your mediator is a family law attorney, he or she has extensive knowledge of family law statutes, relevant case law, and how couples divorce in Connecticut. The lawyer mediator provides information about the normative parameters for the division of assets, child support, and alimony and why those parameters may or may not apply given the facts and circumstances of your marriage. Mediators who are family lawyers have a solid understanding of what will be approved by a family court judge and what will not because it is unfair to one of the parties.
A non-lawyer mediator does not have the requisite knowledge of family law statutes, current case law, or the Connecticut divorce process, which is significantly a legal process. As a non-lawyer, not only does this individual lack an understanding of the law, but he or she is prohibited by law from giving legal advice. A non-lawyer mediator can be charged with the unauthorized practice of law for providing advice regarding the fundamental issues in a divorce, such as the fair distribution of assets, child support, alimony, children’s college education expenses, valuation of business assets or other assets, earning capacity of a party, or the impact of a party’s interest in a trust. In short, as a non-lawyer, this individual can provide limited value in guiding divorcing parties to arrive at a fair agreement that will be approved by the court.
Non-Lawyer Mediators Cannot Draft the Separation Agreement
The goal of mediation is to arrive at a mutually acceptable separation agreement. When your mediator is an attorney, he or she will draft this agreement and file it with the court to complete the divorce process. However, non-lawyer mediators cannot prepare legal documents for the court. Typically, a non-lawyer mediator will prepare what is known as a term sheet, which is a list of what you and your spouse have agreed to, and refer you to a drafting attorney to prepare the legal documents for the court. Many term sheets are inadequate, with a lot of blanks that require considerable back-and-forth between the spouses, the drafting attorney, and the mediator to complete. If the separation agreement is incomplete or the work done by the non-lawyer mediator is shoddy, the court will not grant a divorce. For instance, if there are calculation errors due to a misunderstanding of the child support guidelines, or the wrong statute was recited, or mistakes were made concerning calculations of the present value of your pension, the court will reject the agreement, and you will have wasted a lot of time and money.
In my experience, non-lawyer mediators don’t know what they don’t know and often make it up as they go along.
There’s a Lack of Standards for Non-Lawyer Mediators
Non-lawyer mediators often have a mental health background, and many complete a training course and get a certificate before they begin practicing divorce mediation. However, the state of Connecticut does not require a license or other standards for individuals to practice as a private mediator.
A Non-Lawyer Mediator Can Wind Up Costing More
People who hire a non-lawyer mediator often do so to save money. But a mediation with a non-lawyer mediator may wind up costing far more, due to the individual’s inability to adequately and correctly address all divorce-related matters.
In addition to the financial costs, there are emotional costs. Getting divorced is the most traumatic life experience behind the death of a loved one or the severe illness of a child, because it involves so much profound change. Even if you were the one to initiate the divorce, or the decision was mutual, every element of your life together is changing. During this highly stressful time, having to go back to fix the work of a non-lawyer mediator takes an emotional toll on top of the incremental financial costs.
Lawyer Mediators Bring a Comprehensive Toolkit
Some people hire non-lawyer mediators because they don’t like lawyers or don’t feel comfortable dealing with them. These individuals may assume that a lawyer mediator will take a litigious posture. In my experience, nothing can be further from the truth.
As a family lawyer, I have done more than 350 mediations in my career. I bring a comprehensive toolbox to guide clients through this difficult chapter in their lives. I advocate for both parties. I often analogize the mediation process to being on a seesaw. My job is to run along the seesaw and make sure it stays pretty balanced, even though at some points, somebody might feel that they're up and the other person might feel that they're down. Divorce is first and foremost a legal process that results in a legal contract. As an attorney, I prepare the separation agreement and file all the paperwork so that the agreement can be filed with the court and get approved by the judge. I have never had an agreement kicked back, because I know what to do, and what will and will not work to meet the parties’ goals in the mediation process.
Alan Rubenstein, counsel at FLB Law in Westport, Conn., is a highly skilled family lawyer, divorce mediator, and collaborative divorce attorney. He has practiced family law for more than 30 years. Alan strives to resolve divorces expeditiously, thoroughly, and efficiently. His breadth of professional experience enables him to quickly recognize obstacles and determine a reasonable range of outcomes for each issue. Contact Alan at rubenstein@flb.law or 203.635.2200. For more information about FLB Law, click here.
