Dear Ms. Allison: We want to do mediation instead of divorcing in court. We don’t want lawyers and judges interfering with our arrangements. But my friend said we have to have lawyers and maybe other people involved as well. And no matter what we mediate, we still have to go to court. What? Why even mediate if we still have to go to court and bring all the extra people in? Sandra and Ron in Louisiana

Dear S&R:

I usually tell people to avoid taking legal advice from friends who are not lawyers, but this friend did you a favor.

First, it’s important to understand that a judge is the only one who can order that you are legally divorced. If that doesn’t happen, you will remain legally married. Even if you mediate how you will split up all of your belongings and who will take care of what responsibilities when you go your separate ways, only a court can issue a legal divorce decree.

Second, in most states, the courts send you to mediation to save time, money, and strain on the court’s schedule. So, you can file for divorce and most likely you will be ordered to mediation or you can mediate, settle your affairs, and then file for divorce. That’s really up to you, but if you mediate first you must both be clear on all issues. If you do not have all the evidence of what every asset is worth you should not go to mediation until the discovery phase (getting all the evidence of the assets) is completed. You should also know the value of everything and this may involve getting appraisers if there is real estate, businesses, art, jewelry, etc.

I am in favor of mediation before filing in court as the better way to go, because it allows you to keep parts of your settlement agreement private [link to Mediating the Private Divorce] and avoid exposing all your financial assets to the public. Still, that means you will have to have the right mediator involved to accomplish it. Your mediation agreement will be public, most likely. In Oklahoma, in most counties, anyone with a computer will be able to review it and print it.

Third, there are some very good reasons to involve attorneys and others in your mediation, although you do not have to. These include getting advice on specific issues:

*Legal – Your mediator does not represent you or your soon-to-be-ex. If you each have an attorney at the mediation, you will have an advocate to advise you on options and legalities, and explain the probable outcomes of your decisions. Attorney advice can be invaluable and often help the mediation succeed. Keep in mind it is voluntary and if one side does not understand how the real world of divorce works, that person may be reluctant to agree. Often your attorney will show you that what you want may not be achievable or that it should be. As a lay person you will not necessarily know what is likely to occur.

*Independent Resources- are others who can be invited to your mediation as long as you both agree. Some people want financial advisors, CPAs or tax professionals.

-Most married couples are not evenly split regarding who knows more about the economics of the relationship. These pros can assist you to make fair and wise financial agreements. Independent resources are not usually attached to either one of you or you each can bring your own advisor. Regardless both sides must agree to who else will participate.

-For families with minor children or adult/elder dependents, it can be smart to involve case managers, social workers, and if there are medical needs, pediatric or geriatric specialists. Professionals who deal with human, educational, medical, and relationship concerns are quite useful for guidance with parenting and caregiver agreements.

– You can invite any expert resource to assist with your mediation when all parties agree. It is your meeting. All the professionals listed above are bound by laws regarding keeping your information confidential, so they will not be sharing your personal data outside of the meeting.

*Informal others – Most mediators do not want you to bring non-essential people to your mediation. In one of my mediations a party brought her mother. As long as the other side and the mediator agree, you can bring anyone. Still, I do not recommend bringing non-essential people because it most often makes the mediation more complicated and longer.

That’s your question, Asked and Answered. My best to you,
Gale Allison