As mediators, we’re uniquely positioned to help people resolve their family conflicts in a way that honors their specific needs, values, and circumstances. Mediation is not just about finding a middle ground—it’s about empowering individuals to make decisions that work for their lives, rather than forcing them into the rigid confines of what a judge might order in court.
However, there’s a recurring frustration many of us face: the review process when attorneys get involved. While we fully support and encourage parties to have their agreements reviewed by independent counsel, the challenge arises when reviewing attorneys approach these agreements as though they’re preparing for a courtroom battle. In doing so, they often miss the entire purpose of mediation: the freedom for parties to craft their own unique solutions, unconstrained by what “might” happen in litigation.
The Mediation Advantage: Freedom and Creativity
In mediation, the parties themselves hold the reins. They can choose arrangements that may not align with standard legal precedents but are perfectly suited for their family’s unique needs. For example:
- A parenting schedule that accommodates a parent’s unconventional work hours or the child’s extracurricular activities.
- Financial agreements that deviate from state guidelines because both parties agree it’s fair and makes sense for them.
- Creative ways to handle assets, debts, or future financial responsibilities that a court wouldn’t typically consider.
These tailored solutions are why people turn to mediation in the first place. Yet, too often, when attorneys step in to review these agreements, they approach them with a laser focus on how closely they mirror a potential court ruling.
Why This Happens
Attorneys are trained to anticipate what a judge might do. They are skilled at identifying risks, advocating zealously for their client’s interests, and ensuring that any agreement is legally sound. These are vital skills in litigation—but mediation isn’t litigation. When attorneys default to the “what would happen in court?” mindset, they inadvertently undermine the mediation process by:
- Imposing unnecessary rigidity: Pressuring parties to conform their agreement to legal norms rather than their unique needs.
- Fostering conflict: Encouraging one party to “push for more” when both were previously satisfied with their arrangement.
- Devaluing collaboration: Dismissing the significance of the compromises and understanding the parties achieved through hours of discussion.
The Result: Parties Lose Confidence
This “litigation lens” can lead to unnecessary revisions, increased conflict, and even second-guessing by the parties. Suddenly, the agreement they worked so hard to craft together doesn’t feel right anymore—not because it isn’t fair, but because an attorney said, “You could get more in court.”
This advice might technically be true, but it ignores the broader context. The “court option” is often exactly what the parties want to avoid: the time, expense, and emotional toll of litigation. Mediation isn’t about getting everything you might be entitled to—it’s about finding solutions that both parties can live with and feel good about.
A Call for a Paradigm Shift
Attorneys play an essential role in ensuring agreements are legally sound and enforceable, but we urge them to approach mediation agreements with a different mindset. Instead of evaluating an agreement solely through the lens of litigation, we encourage attorneys to ask:
- Does this agreement work for the parties involved?
- Are both parties informed and comfortable with the terms?
- Is the agreement fair, even if it’s not “perfect” by courtroom standards?
- Does it honor the spirit of collaboration and self-determination?
Partnering for Better Outcomes
As mediators, we don’t seek to replace attorneys but to work alongside them to support the parties. When attorneys embrace the flexibility and creativity of mediation, they enhance their clients’ experiences and outcomes. Parties leave feeling confident and empowered rather than discouraged or second-guessing their decisions.
To our colleagues in the legal field: Let’s honor the unique value mediation offers by respecting the autonomy and self-determination of the people we serve. Together, we can help families transition through difficult times with dignity, fairness, and solutions that truly work for them.
If you’re considering mediation and want to learn more about how the process can empower you, reach out to our team. We’re here to help you create agreements that reflect what matters most to you.
