My last mediation of 2020 was for a prenuptial agreement, and to me it was kind of a sign of hope for the year to come. The couple had given a lot of thought and had many discussions about their prenup prior to contacting me, and we actually finished the entire mediation in less than a month. Although this was a bit unusual, it highlights how mediation was the perfect solution for the couple.
The major key to success with mediation for this couple was that they approached it as “their prenup”. They came to me because they knew they needed help with the delicate intricacies of this type of agreement that they had no knowledge of. They also knew that had they each gone to different attorneys, it would have taken a lot of time and money to get an agreement like this accomplished. And in the end, that agreement may not have reflected their true desires.
During mediation, I spoke with them and discovered what was most important to each spouse. From there, I was able to quickly guide them through the process and finish with a prenuptial agreement that they were both very happy with. Next, I referred them to “mediation friendly” attorneys (since each individual needs to be represented in order to have a legal binding document drafted), and an agreement was finalized based on the Memorandum of Understanding (MOU) that I had drafted for them.
Why Mediation Works Well for Prenuptial Agreements
The prenup that I mediated at the end of the year had a very happy ending because the couple had the right mindset going in and the process turned out to be a perfect fit for them. But even when the pieces do not fit perfectly into place, mediation can still be a great way to work out the terms and conditions of a prenuptial agreement.
Think about it. Prenups are already a taboo subject that many soon-to-be spouses are afraid to bring up. But at the same time, this type of agreement can be very helpful for a lot of couples, and many couples need a prenup to provide some future certainty and predictability around the financial issues that are important to them.
Because of the delicate nature of prenuptial agreements, drafting a generic agreement (usually done by the attorney of the more moneyed spouse) can create hard feelings just at the time when a couple is about to start their new life together. Generic prenups often end up being one-sided in favor of the spouse who is more motivated to create it, and it can put the two parties in an adversarial position. This is not the frame of mind you want to be in with your wedding day approaching.
Mediation is an entirely different approach that levels the playing field and allows the spouses to create a prenup in a friendly and cooperative environment. During mediation sessions, the spouses meet face-to-face (or virtually if that is more convenient) with a neutral, third-party mediator to work out the agreement.
The mediator looks to discover not only what is most important to each participant, but why these things are important to them. Once each participant has explained the motivation for their position, the parties are better able to understand and empathize with each other. This kind of open communication and mutual understanding allows the couple to come together and think more creatively, clearing the way for solutions that both parties will be very satisfied with.