Should we mediate our prenuptial agreement?

Yes! The mediation process is inherently more cost-effective than having two attorneys run the process and has many other benefits. Twenty years ago, I represented a client in negotiating a “prenup”; when the parties failed to reach an agreement, it led to a last-minute cancellation of the wedding. I now know that there is a better way to do it. Early in my career, I was struck by the way many divorce lawyers saw themselves as decision-makers rather than advisors for their clients. In the months leading up to your wedding, the last thing you want is an adversarial prenup negotiation. Drafting a prenup should be a reaffirmation of your relationship, not a bare-knuckles fight between the attorneys. Mediating your prenup is an opportunity to discuss important issues prior to the wedding, and a mediated prenup is as binding as one by your attorneys. A good mediator is a facilitator, treating the parties as adults and helping them take responsibility for their own lives and make decisions about their own futures. It’s your prenup, your lives, and your right to make the decisions to settle the issues.

Prenuptial agreements, entered into before the wedding, primarily provide for what happens in the event of a divorce or the death of one spouse. Historically, the wealthy used prenups to protect their inherited wealth, but increasingly, people entering into a marriage are interested in having a prenup. You should start doing yours at least six months before the wedding. Attorney involvement, if any, is up to the two of you.

Family mediation with an experienced mediator is the right process for negotiating a prenup. A good mediator deals with his clients as human beings, as well as with the legal and financial issues. Choose your process (and your mediator) carefully. Often, the process has at least as big an impact on the parties and their lives as the terms of the prenup. A good mediator will educate both of you about prenups, the relevant law, and your options and will keep both of you focused on the legal issues in a productive way that respects your relationship. Mediating a prenup is more expeditious than the old-fashioned way, in which your attorneys drive the process. Family-law attorneys (and mediators who primarily do litigation) are focused solely on the terms of the “deal”, often seeing the negotiation as a “zero-sum game”, all about winning or losing. A well trained, experienced mediator helps both parties accomplish their goals. In a good prenup negotiation, both parties will develop communication skills, which will be helpful after the wedding.

The practice of family mediation in most jurisdictions is unregulated; it’s caveat emptor (Buyer Beware!). You don’t need any credentials to put up a mediation shingle. Choose your mediator carefully, the way you would choose the right attorney. Ask them about their mediation training and where they received it. How much experience do they have? You want someone who has done hundreds of mediations, because the learning curve for mediation is a long one. Your mediator will be your guide in negotiating the prenup, educating you, so the two of you can make the best choices. Mediation, unlike a negotiation run by lawyers, is about keeping both of you in the driver’s seat.

Douglas Schoenberg is an accredited divorce mediator (NJPAM), attorney, practitioner member of the Academy of Family Mediators in Summit, NJ.