Many couples hope to avoid the cost and stress of hiring attorneys immediately after deciding to divorce. In some situations, spouses choose to participate in informal mediation before either party retains legal counsel. For couples who communicate well and generally agree on the major issues, this approach can be an effective way to begin discussing a settlement.
However, while informal mediation can offer several benefits, it also comes with important risks. Before making binding decisions about your finances, children, or future, it is important to understand both the advantages and the potential downsides.
What Is Informal Mediation?
Informal mediation generally refers to working with a neutral mediator before either spouse hires an attorney. The mediator facilitates discussions, helps identify areas of agreement and disagreement, and encourages the parties to work toward a mutually acceptable resolution.
It is important to remember that the mediator is not the attorney for either party. The mediator's role is to remain neutral and assist with communication and negotiation—not to advocate for one spouse or provide legal advice. In some cases, the mediator could care more about settling the case even if it leads to inequitable outcomes.
Potential Benefits
For the right couple, informal mediation can provide several advantages.
First, it can reduce conflict. Rather than beginning the divorce process with competing attorneys and litigation, the parties have an opportunity to discuss issues in a structured, cooperative setting.
Second, it may reduce costs. If the parties reach agreement on most or all issues before hiring attorneys, the legal fees associated with negotiation and litigation may be significantly lower.
Finally, early mediation can often move the process forward more quickly. Instead of spending months exchanging letters or attending multiple hearings, the parties may resolve many issues through one or more mediation sessions.
The Biggest Risk: Not Understanding Your Legal Rights
One of the most significant drawbacks of mediating before consulting an attorney is that neither party may fully understand their legal rights and obligations under Washington law.
For example, a spouse may not understand:
- How community property is divided.
- Whether an asset is community or separate property.
- How retirement accounts or pensions should be divided.
- Whether child support is being calculated correctly.
- Whether spousal maintenance may be available.
- What parenting plan provisions are commonly included in Washington cases.
Without that legal knowledge, a spouse may unknowingly agree to give up valuable rights or accept far less than they would have been entitled to under the law. Conversely, a party may insist upon terms that are inconsistent with Washington law, making settlement more difficult than necessary.
Unequal Knowledge Can Lead to Unequal Results
Even when both spouses negotiate in good faith, one spouse may have significantly more knowledge about the family's finances than the other. One party may understand investments, retirement accounts, business interests, or debt obligations while the other has little involvement in those matters.
Without legal guidance or adequate financial information, it can be difficult to determine whether a proposed settlement is actually fair.
Mediation Works Best with Full Financial Disclosure
Successful mediation depends on both parties being honest and transparent about their finances. Before reaching a final agreement, it may be best practice for each spouse to have full access to sufficient information regarding income, assets, debts, retirement accounts, and other financial matters. If one spouse suspects the other is hiding assets or withholding financial information, mediation alone may not be the appropriate starting point.
You Can Still Consult an Attorney
Choosing mediation first does not necessarily mean you must proceed without legal advice. Many individuals participate in mediation while consulting an attorney outside of the mediation sessions. This approach allows the parties to negotiate directly with the assistance of a neutral mediator while still obtaining independent legal advice before signing a final agreement. An attorney can explain your rights, identify potential issues, and review any proposed settlement to ensure you understand its long-term consequences.
Not Every Case Is Appropriate for Informal Mediation
Informal mediation is generally most successful when both parties communicate respectfully, exchange financial information openly, and genuinely want to reach a fair resolution.
Cases involving domestic violence, coercive control, hidden assets, significant power imbalances, or an unwillingness to negotiate in good faith may require attorneys to become involved much earlier in the process.
Informal mediation can be an excellent tool for couples who wish to resolve their divorce cooperatively while minimizing conflict and expense. However, mediation should not come at the expense of understanding your legal rights. Before agreeing to divide property, establish child support, or finalize a parenting plan, it is often wise to obtain independent legal advice so you fully understand the legal consequences of your decisions. At Magnuson Lowell, P.S., we regularly advise clients before, during, and after mediation to help them make informed decisions and protect their interests. We offer free telephone case evaluations 425-800-0573 to discuss your divorce and help determine whether mediation, negotiation, or litigation is the right path for your situation.
