“I didn’t know you could mediate that” is a phrase I often hear from people when I list the many situations in which mediation can be a valuable option. Perhaps the one that surprises most is prenuptial mediation.

Prenuptial agreements can be very useful in certain circumstances, such as when one spouse or both owns and operates a business or when there are anticipated future inheritances or interests in trusts. However, it is not only financial issues that can be dealt with in a prenup. For example, when one or both parties are entering into a second or third marriage and have children from earlier unions. As these situations can involve complex legal and financial issues, the parties are advised to have counsel well versed in divorce, business, and tax law, as well as estate planning.

It is not unusual for the “more-moneyed” spouse having been advised by a financial planner, attorney, friend or family member to get a prenup outlined. This can create, of course, a situation of a power imbalance putting the “less-moneyed” spouse in potential jeopardy. For this reason alone, it is so important to have a skilled and sensitive mediator.

Mediators who conduct prenup sessions typically begin by having the parties develop a complete inventory of their individual financial situation. The mediator will encourage the parties to consider the process as an opportunity to develop a financial plan for their marriage that not only protects the assets of one party, but also protects the security of the other. Mediators report that parties in prenup discussions generally enjoy the session and find it supports their relationship and future plans. After the mediation the parties’ attorneys would be asked to prepare appropriate documents.

Please note: None of the above should be taken as legal advice.

Consult with your attorney to determine if this an appropriate option.

In previous posts I’ve discussed reasons why people decline the option to mediate. But there are many more reasons why people should choose mediation whevever possible, and here’s why:

Many years ago I was asked by a magazine reporter why I became a mediator. I remember my immediate response was that mediation levels the playing field. That comment was accompanied with a whimsical photo of me with a rake in hand. Even now, I still contend one major advantage of mediation is the process makes it possible for parties to work together without the obvious threat of power. Mediators are conscious to one party’s attempt to intimidate the other and will work to remove that from the equation. If that’s not possible, the mediator may stop the precedings if an agreement isn’t equitable, is unlikely to be fulfilled, and believes it will exacerbate an already strained relationship.

Also, mediation has communication rules. Parties who may have been disrespectful and threatening to one another must adhere to the mediator’s rules of behavior. Of course the amount of rules outlined will vary by the mediator’s perception of the situation. For most sessions, the mediator will likely expect a level of professional conduct from all participants. For others, the mediator might review language and nonverbal behaviors that won’t be permitted. Again, if the parties refuse to adhere to the rules, the mediation will be terminated.

And lastly, before most mediations the parties agree to confidentiality, which the mediator is also bound by, except as provided by law or if the parties waive confidentiality. Such agreements reduce the risk of sensitive information or comments made during sessions from becoming public and result in more open and honest discussions.

Mediation is a very special form of dispute resolution. Many participants in mediation trainings tell me they wish they’d known about the option before taking the course.