Do not be Bill and Nancy (not their real names). Through no fault of their own they screwed this all up – they let lawyers control their lives. They came to me for mediation – but by then, the damage had already been done. There was too much scar tissue to fix it. I often say that since the time of the Roman’s lawyers have been making money with this approach – it works very well for lawyers, but not so well for clients.
They had a separation agreement in place for a couple of years. That was not the ‘mistake’. The mistake was how they created the ‘agreement’.
Bill had retained a lawyer to prepare an agreement. Bill’s lawyer sent the agreement to Nancy’s lawyer. Nancy and her lawyer looked at the agreement and thought: ‘What are they thinking? This is full of completely unreasonable terms!’. Nancy’s lawyer wrote back to Bill’s lawyer with an amended draft. Bill and his lawyer looked at the amended draft and thought; ‘What are they thinking? This is full of completely unreasonable terms!’ After many months, thousands of dollars in fees and a lot of frustration, the parties signed an ‘agreement’ (was not really an ‘agreement’ in the true sense of the word because neither party agreed but negotiation fatigue had settled in and they just wanted it over.
Predictably, since it was not done correctly, the ‘agreement’ did not stand the test of time. So, two years later they were in my office to mediate issues arising from the imperfect agreement. They did not want to spend thousands on lawyers again so they thought that they would go to mediation – but they came looking for a problem, not a solution.
The husband had a list of 7 items. The wife had a list of 5 items. Each insisted that their list be dealt with before the other’s list. We spent 15 minutes on that until I made a decision about how to address the issues. You will not be surprised to hear that they did not successfully resolve their issues in mediation. This was not their fault. The mistake they made was how they approached this in the first place. If they had gone to mediation and created their solution together then it has a much better chance of standing the test of time. If they had worked together to create the agreement, we would have gone over all of these issues and would have reduced the chances of conflict arising later.
