Why You Still Need Mediation Even If You Settled Everything

April 30, 2021

{4 minutes to read} I often receive phone calls from potential clients telling me that they have settled everything and just want me to write up their agreement. When faced with this request, I explain that this is not what I do and why mediation would still be important even if they have discussed and agreed upon terms.

Terms that were Not Addressed

Even if there are no minor children, it’s difficult to navigate through all of the terms that need to be considered in a Separation Agreement on your own. The concept of marital property in New York is very broad, and you may not have even addressed assets that, in New York, would be considered marital property. If a marital asset is not addressed at all in your agreement, not only have you given up a right which you didn’t know you had, but it can cause problems in the future if the enforceability of your agreement is challenged.

If you have minor children, the likelihood is even greater that there are issues that were not addressed. You’ve probably considered decision making, a schedule of access, holidays and vacations, but to have a comprehensive agreement we would also discuss relatively minor points such as transportation for access, document retention and sharing, changes to the schedule going forward, rules for cancellations and major things like what happens if one of you wants to relocate to a distant location.

You May Not Be Aware of the Law

You can find New York’s child support and maintenance calculators online, but you may not know what to do about income over the caps. Or that a budget is the best way to determine if the support calculations will be appropriate in your case.

In terms of property, you may believe that something is separate or marital based upon what makes sense. However, that may not be the case in the sometimes arcane application of the Equitable Distribution law.

Of course, you may opt out of certain provisions of New York law, but you do need to know what the law provides before you can consider doing so and make an informed decision.

You May Not Have Thought about the Future

In mediation, you will be asked questions that will test what you have agreed upon against changing circumstances, such as:

What will happen to support if one of you loses your job or makes significantly more money than you are making now?
What happens with your access plan as your child becomes older?

It is important that your Agreement encompass as much as possible in terms of changing circumstances so that you never have to return to mediation, or even worse, go to Court.

I think it can be helpful for clients to discuss some terms on their own if they are able to have productive discussions. Those discussions can enhance the mediation process, but they don’t replace it. Divorce Mediation is more than just agreeing on terms and writing them into a Separation Agreement. It is a process that ensures that you understand the legal and practical implications of the terms of your agreement, as well as both of you having your needs and interests met by those terms.

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