Mediators are increasingly involved in helping parties negotiate premarital agreements, or prenups, because mediation is a nonadversarial way to approach the process. But before your client uses a mediator, draft an agreement that covers the terms of mediation.
When a mediator is used to help with parties negotiate a prenup, the mediator usually takes a 3-step approach:
- Meets with both parties without their independent counsel to discuss what they want to accomplish.
- Puts any tentative agreement that’s reached into draft form.
- Drafts an agreement, which is reviewed by each party’s attorney and further negotiated as needed.
If mediation is used, each client’s counsel should make sure that the agreement includes a clause detailing the terms of the mediation. Such a clause might include, for example, any or all of the following statements:
- The parties have chosen to resolve the issues involved in the preparation of the premarital through a process of mediation;
- Each of the parties has his or her own independent counsel, A being represented by Y, B being represented by Z;
- The parties mutually selected attorney X to assist them, as set out in their agreement to mediate;
- During the mediation process the parties have been generally advised on California family law and how it defines the rights and responsibilities of married persons, including in any possible proceeding for dissolution;
- Thus informed, the parties have decided to resolve the issues in this matter according to what each has determined is appropriate for him or her-self and in a manner that he or she has found to be equitable and reasonable in light of his or her particular circumstances, needs, and desires; and
- Counsel may also suggest that the mediator meet with the parties’ attorneys and parties to negotiate the terms of the agreement in a collaborative manner.
Prenups often involve both family and estate planning issues. Before drafting one, check out CEB’s Crossover Issues in Estate Planning and Family Law, chap 2. When you’re ready to draft, turn to CEB’s California Marital Settlement and Other Family Law Agreements. Both of these titles are part of the OnLAW Family Law Library.
Other CEBblog™ posts you may find useful:
- What Can and Can’t Go Into a Premarital Agreement
- Cohabitating Couples Need Clear Agreements
- Using Postnups to Renegotiate a Marriage
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