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The Difference Between the Mediator, the Draftsman, and Bartleby the Scrivener

Rachel Alexander June 30, 2016

{7:18 minutes to read} On occasion, clients enter mediation with a proposed property settlement agreement in hand—something they have put together in an attempt to get a head start on (and save money in) the mediation process. The parties want the family mediator (or family law attorney) to draft an agreement for them reflecting exactly what they proposed.

The only problem is, well, many problems.

What the couple came up with may neither consider the law or the parties’ individual best interests. Sometimes it doesn’t properly reflect the children’s rights or long-term consequences. Sometimes the “agreement” reflects only the wishes of one party.   

An agreement is meant to be a meeting of the minds. If it’s not, it’s vulnerable to being challenged in the future.

This is why a mediator cannot merely be a draftsman. A mediator is charged with shining light on exactly what each party is agreeing to, within the fully disclosed context of the circumstances of the marriage—financial and otherwise. That is, complete declaration of all assets, debt, description of marital lifestyle, employment histories, children’s needs, support needs, and so on. An agreement that fails to contextualize itself is a flimsy agreement indeed!

One spouse may spearhead and push through an agreement without either spouse really being fully aware of what is being agreed to and which rights are being waived. When they do realize it, there can be both indignation and distrust on the part of one, and real stubbornness on the part of the other. But we agreed to this! You can’t change it now! And how could you have tried to bamboozle me into such a one-sided agreement!?

Don’t set sail without a map in hand!

I advise people to refrain from agreeing to anything before their first mediation meeting. Why?

Because they can fix things in place that will later have to be uprooted, with considerable effort, and moved. Consider the pyramids. One only wants to build those glorious monstrosities once!

When someone is decidedly bound to an agreement that was made without adequate knowledge, the mediation ends up taking longer because we now have to unwind and explain. Time is spent unfastening clients from agreements they have attached to—time that could potentially be better utilized.

Clients typically do not know what they may be obligated and entitled to, and they may agree to something based on incomplete or wrong information.

  • Clients may agree to something without an appreciation for the long-term and legal consequences.

  • Major aspects of the agreement may be unaccounted for or forgotten, as clients are working without a framework of all that needs to be included.

  • Once they reach an agreement, one of them can often be quite “dug in” to whatever they have agreed to, however unfair or unlawful that may be.

  • Trust and the cooperative spirit can be contaminated by the forging of an agreement that later appears one-sided and unfair, impairing further discussions and mediation.

Please make no mistake, I encourage productive, rich conversations between my clients; however, I encourage them after they are furnished with a structure within which their efforts can be effective.

Without an initial map and compass provided by the mediator, clients may be using all their energies to travel swiftly in the wrong direction. Once they’ve arrived, they may be delighted to have reached their destination, but I often have the unhappy task of informing them that they have arrived at an island called Poop.

An example: A party, who has been out of the work force for 10 years, waives alimony without having any plans as to how he can maintain a comparable lifestyle post-divorce. In mediation, he then learns that he may have been entitled to 8–9 years of approximately $150,000 per year alimony (based on the parties’ particular situation and the relevant law). One might imagine how this information lands on both clients!  

Sometimes, clients initially feel a bit frustrated when the mediation process is introduced, requiring information and discussion, and time, instead of delivering an immediate result. But the process is purposeful.  Without it, the agreement can be incomplete and untenable.

As a mediator, I have an interest in my clients reaching a settlement agreement, but it must be an informed settlement agreement. Both parties must understand what they are agreeing to and must have the legal and factual context clarified and illuminated so that they can meaningfully agree. This is in the interest of both parties—to arrive at an agreement that is complete, based on full disclosure and comprehension—so that both willingly adhere to it in the years to come.

Bartleby the Scrivener

Mediation is not writing up and tossing some legalese into whatever has been concocted. Reaching a solid agreement requires some collective reality testing and due diligence.  

In the alimony scenario above, somebody could say, ”I’m waiving alimony. It’s true, I live in Essex County, New Jersey, and I am currently earning just $10,000 a year. Still, I don’t want to accept alimony. It feels wrong.” If people still want to agree to a scenario like this, well, it is within their rights to do so.  But now they are informed.  

In mediation, among other things, we:

  • Agree on the marital budget and each party’s projected separate budget;

  • Discuss expectations of future employment and earnings; and

  • Develop a parenting plan that’s suitable for the children and whole family.

It’s a mediator’s job to invite thoughtful decision making. A mediator is not a low-level mobster who can help bully, rush or force through a biased agreement.  

Let us end with what is both a quote and exhalation, from Herman Melville’s Bartleby the Scrivener.: “Ah Bartleby! Ah humanity!” What more could be said!