Why You Should Mediate Your Prenuptial Agreement

November 26, 2019

{4 minutes to read} You and your fiancé have discussed the terms that you would want in your prenuptial agreement. You seem to be in agreement, so you feel that there is nothing to mediate and don’t see the need for a mediator when you could just have your lawyer draft the agreement and your fiancé can have an attorney review it. So, why involve a third professional and incur an additional fee when nothing is really in dispute?

You May Not Have Addressed Everything

A prenuptial agreement (prenup) can be broad or limited, but in order to know that you have considered everything you may want to include, you need to know everything that could be addressed and how those situations would be handled under the law without your prenup.

Without a Mediator:

Your attorney would let you know you forgot to discuss “x” issue and then will include “x,” likely in a manner that benefits you. In reading the agreement drafted by your attorney, your fiancé could feel blind-sided because something was included that was not discussed, even if he or she agrees with “x.”

Even if you speak to your fiancé before “x” is inserted, you may innocently start off with “my attorney said…” which can be a little off-putting to the other person and places you in a positional framework, even if that is not your intention.

With a Mediator:

Your mediator will objectively raise all of the terms that could be provided for in a prenup, and you both will address your feelings and concerns about including those provisions — or not. This will include a discussion as to why something is important to the other, the understanding of which is vital to reaching an agreement. It also can lead to other viable options that neither of you considered.

Drafting Misunderstandings

Your attorney’s job is to represent your interests only, so if there is some leeway when drafting the agreement to use language that is more favorable to you, that is the language that would be used. While you may not even be aware of that drafting choice, your fiance’s attorney would certainly recognize such a choice of language and point that out to your fiancé. While you can explain that you didn’t direct your attorney to do anything like that, it would be best to avoid that misunderstanding and those hurt feelings with a more impartial drafting.

Avoid Attorneys Dictating the Process

If there is no mediator and there are disagreements between you on terms, the only way those disagreements can be addressed would be through the attorneys. The attorneys will be sending letters or emails back and forth, or having discussions over the phone without the two of you being present, all of which will be billable. As important as client involvement is in a separation, it is even more important in the discussion of a prenup when you are preserving — rather than dissolving — your relationship.

An adversarial process can place a strain on your relationship needlessly. You will still have an attorney review the agreement you made in mediation, but the nature of that is much different than having the attorney negotiate terms on your behalf.

A word to the wise — keep the misunderstandings and positions to a minimum and create your prenup with a mediator.

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