Overturning mediation agreement

[btbarbara]

What is the name of your state (only U.S. law)? GA

I have been separated since April 2008 and have two children (4 and 2). When my ex and I were unable to reach an agreement to file the divorce uncontested, I filed and had him served in October. We attended mediation in November. We were both represented by attorneys during the mediation however for reasons I won't go into here, I have lost all confidence in my attorney and his advice. I am looking into reporting him to the Bar Association for some of the more egregious "errors" he's made. I have spoken to several other attorneys locally who agreed that I have a valid malpractice claim against him, however, each attorney that I have spoken with has said that even if I fire my current attorney, they would be hesitant or completely unwilling to take my case at this point.

During the mediation, I took my attorney's advice and agreed to some things that I really shouldn't have. Now he tells me that the mediation is binding and there is no way for me to change those things. From what I can tell from the mediation paperwork, this is true. But if my legal counsel was incompetent, do I have any recourse? (Note: There was no fraud or misrepresentation, just bad legal advice and I gave in because I wanted it over with)

Going into the mediation, we had working drafts of the settlement and Parenting Plan where we had agreed to everything except the amount of child support and the visitation schedule. During the mediation, those were the only two topics that we discussed. Now my Ex and his attorney have removed everything from the Parenting Plan and SA that was not explicitly specified in the mediation, even though we had already agreed to those issues. I am not at all comfortable with some of the changes. My attorney is advising that I should go ahead and sign the revised documents because "the Parenting Plan is just a piece of paper and doesn't really mean anything." He says that at this point, my only option is to go before a judge on the issues that were not included in the mediation and that will be expensive and make me look petty and vindictive. He says that I should sign just to get some kind of agreement in place and I can have it changed when we wind up back in court which will probably be very soon. On one level, that makes sense, but I'm beating myself up for giving in at the mediation and I don't want to make the same mistake twice.

[LdiJ]

Originally Posted by btbarbara

What is the name of your state (only U.S. law)? GA

I have been separated since April 2008 and have two children (4 and 2). When my ex and I were unable to reach an agreement to file the divorce uncontested, I filed and had him served in October. We attended mediation in November. We were both represented by attorneys during the mediation however for reasons I won't go into here, I have lost all confidence in my attorney and his advice. I am looking into reporting him to the Bar Association for some of the more egregious "errors" he's made. I have spoken to several other attorneys locally who agreed that I have a valid malpractice claim against him, however, each attorney that I have spoken with has said that even if I fire my current attorney, they would be hesitant or completely unwilling to take my case at this point.

During the mediation, I took my attorney's advice and agreed to some things that I really shouldn't have. Now he tells me that the mediation is binding and there is no way for me to change those things. From what I can tell from the mediation paperwork, this is true. But if my legal counsel was incompetent, do I have any recourse? (Note: There was no fraud or misrepresentation, just bad legal advice and I gave in because I wanted it over with)

Going into the mediation, we had working drafts of the settlement and Parenting Plan where we had agreed to everything except the amount of child support and the visitation schedule. During the mediation, those were the only two topics that we discussed. Now my Ex and his attorney have removed everything from the Parenting Plan and SA that was not explicitly specified in the mediation, even though we had already agreed to those issues. I am not at all comfortable with some of the changes. My attorney is advising that I should go ahead and sign the revised documents because "the Parenting Plan is just a piece of paper and doesn't really mean anything." He says that at this point, my only option is to go before a judge on the issues that were not included in the mediation and that will be expensive and make me look petty and vindictive. He says that I should sign just to get some kind of agreement in place and I can have it changed when we wind up back in court which will probably be very soon. On one level, that makes sense, but I'm beating myself up for giving in at the mediation and I don't want to make the same mistake twice.

Wow...a parenting plan is certainly NOT just a piece of paper that doesn't mean anything, and you certainly CANNOT get it changed "soon" if you agree to it now.

However, if you are not being reasonable about some things then that could explain why your attorney is saying those kinds of things.

Give us some examples of what got left out...or you are not happy with.

[btbarbara]

Thank you for your reply!

One of the things that was left out of the SA was the life insurance which I posted about in a separate thread.

Another is the morality clause. Originally we had agreed to no overnight guests of the opposite sex not related by blood or marriage. Now he wants that taken out completely but has said that he will concede to no overnight guests unless they are engaged (he's already making arrangements to move in with his girlfriend so I'm assuming they'll be engaged when this comes up...rumor has it she's not actually divorced yet either so there are no plans for them to get married any time soon).

Originally we had agreed to a statement that said there would be no consumption of alcohol while the children are in his care or for 12 hours prior. Now he wants that taken out. My concern is that he is a high functioning alcoholic. When he has the first drink, he can't stop. He says he's not an alcoholic because he only gets drunk a few nights a week. My lawyer says that if the drinking becomes a problem, then I can take him back to court whether it's in the parenting plan or not (which makes sense). The thing is, Ex is somewhat afraid of the parenting plan so if that is in there, then at least for now, he is a lot less likely to push his luck than if it is not.

Originally we had a statement that he and I had to be the ones to pick up and drop off the children for visitation. Now he wants that to say that he or his fiance or another family member can pick them up and drop them off. This is not too big of a deal, except that his visits are supposed to be with him...not his girlfriend or anyone else.

Originally we had a statement that said that if he had to be away from the children for more than 4 hours, I would have the right of first refusal before he could leave them with anyone else. Now he wants that to say that if he or his fiance can't be with them overnight, I will have the right of first refusal. On this one, my attorney says that if he leaves them somewhere one time, it's not worth me pressing the issue, but if it becomes a pattern where he's dumping them with someone every time he's supposed to see them, then I can pursue that whether it's in the parenting plan or not.

Originally the visitation schedule said that the noncustodial parent could have 4 hours visitation with the children on their birthdays or the Sunday following. Now he's taken that out and says that he's ok with just seeing them the weekend before or after their birthday (since he'd have every other weekend anyway). My concern is that both boys have summer birthdays so in theory he could schedule his summer weeks such that I would not get to see the children for the two weeks surrounding their birthdays. I don't really expect him to use his summer visitation at all, but if he realizes that he could keep them away from me on their birthdays, he might just to spite me.

I also want something in there that says that if he doesn't exercise his visitation on a day when I have to work, then he's responsible for the cost of child care in order for me to work. If he's supposed to have them on a Monday when they're out of school, daycare is $50 for me (precisely why he doesn't take them). When he's supposed to have them every other school break or for the days surrounding Thanksgiving and Christmas (or in the summer), it costs me $250/week for childcare if he doesn't take them. Again, the biggest reason he won't take them on those days is because he doesn't want to be responsible for their childcare. My attorney says there's nothing we can do about that...it's just my responsibility as the custodial parent.

Those are the ones that I can remember off the top of my head that he removed or changed after the mediation.

Now, in the mediation, my attorney convinced me to drop my request for back child support for the first 8 months that we were separated, to allow him to take the income tax deduction for one of the boys (he said it wouldn't make that much difference for me...this year it made a $2400 difference!), to accept substantially less child support than the presumptive amount, and to give in on several other issues in the visitation schedule. I would either like to go back to mediation on the whole mess, or to overturn the mediation agreement and let a judge decide the whole case. My attorney says neither of those is an option at this point. The other attorneys that I've consulted don't want to say too much to someone else's client but have said that even though I have a valid malpractice claim against him for some other issues, it would be difficult, if not impossible, to get the mediation agreement thrown out unless I can show fraud on the part of my ex and his attorney. I just have a hard time believing that if my legal counsel was incompetent or clearly not acting in my best interest, the agreement is still binding.

I appreciate your thoughts!

[mistoffolees]

No, you're not going to be able to arbitrarily change the agreement at a later date. If you can change it at all, it will require that you give good cause - and plan to spend a lot of money. So you're right to get a good agreement up front.

However, you need to learn to pick your battles. Some of those things are things that the court will go along with. Others are not. When you walk in with a laundry list of items and are unwilling to budge on anything, don't expect to get an agreement.

You really have a couple of choices:

1. Go to court and hope the judge agrees with you
or
2. Pick the few non-negotiable items and give up the rest of the stuff.

Note that some of the items are just not going to happen. You're unlikely to get a judge to order that he NEVER have alcohol within 12 hours of seeing the kids. You may think he's an alcoholic (he may even be one) but without very strong evidence to prove your point and a very good lawyer, the judge is not going to take away his right to have a glass of wine with dinner.

Then there are things that you could possibly get, but only after a battle - and you have to decide if it's the end of the world. Insisting on 4 hours with them on their birthdays is an example. The world won't come to an end if you're not with them on their birthday some years. You'll still get to see them (presumably you have some visitation with them if the father takes them for the summer) and you can talk with them on the phone.

Talk with your attorney about what's realistic and what isn't. Make sure you listen when he tells you that a battle isn't worth fighting. You could still choose to fight that battle, but expect it to be time consuming and expensive - and you might not win.

[btbarbara]

Thank you for your quick reply! Just for the record, I have given in on a lot of things and "picked my battles" so to speak...I have not been disagreeable at all. These are just the few things that are left. I think what irritates me the most is that these are all things that we had already agreed on. During the give and take of 8 months of negotiating, this is what we had come up with and we were both able to live with it. When we got to mediation, the mediator asked us what issues we needed to discuss and we both said that we agreed on everything except child support (he wanted to pay roughly 1/4 of the presumptive amount beginning when the divorce was finalized and nothing for the time leading up to that...I wanted about 2/3 of the presumptive amount starting immediately and a little extra each month until he had caught up for the past 8 months) and visitation (I had written a very liberal visitation schedule but he was not happy with a couple of items in there...of course when we proposed a "standard" visitation schedule, he freaked out and said that he couldn't handle taking the kids that often). As we were wrapping up the mediation, I actually asked while everyone was in the room together if the other items in the SA and Parenting Plan would stay the same as our working drafts and his attorney said he had no issues with anything that had not been discussed today and everything was fine. Some of the things I gave in on at mediation were actually concessions to get to keep some of these items in there so now I feel like I'm getting screwed by him taking them out.

Basically, my attorney is telling me that if we go to court, I have a chance of "winning" on all of these issues but it's just not worth the time/money/frustration/ill-will to do it. The funny thing is though, the day I lost my job, he told me that he considered me a "friend" and felt bad about continuing to bill me considering how patient and understanding I'd been about all of his screw-ups up to that point so he just wasn't going to bill me anymore, but he also advised me that day to give Ex whatever he wanted just to get the agreement signed and end the fighting. Everything he had told me for the last 7 months went out the window and suddenly nothing was worth fighting for...I just needed to get it over with. That's been his advice ever since then...do what you have to do to get it over with...you're going to be back in court again soon enough anyway. He's also said several times that even a bad agreement is better than no agreement at all which is what we have now. I just don't trust his advice anymore.

Thank you again for giving me some things to think about!

[LdiJ]

Originally Posted by btbarbara

Thank you for your reply!

One of the things that was left out of the SA was the life insurance which I posted about in a separate thread.

A judge won't order that if dad objects.

Another is the morality clause. Originally we had agreed to no overnight guests of the opposite sex not related by blood or marriage. Now he wants that taken out completely but has said that he will concede to no overnight guests unless they are engaged (he's already making arrangements to move in with his girlfriend so I'm assuming they'll be engaged when this comes up...rumor has it she's not actually divorced yet either so there are no plans for them to get married any time soon).

A judge may or may not order that if dad objects. Its also extremely difficult to enforce.

Originally we had agreed to a statement that said there would be no consumption of alcohol while the children are in his care or for 12 hours prior. Now he wants that taken out. My concern is that he is a high functioning alcoholic. When he has the first drink, he can't stop. He says he's not an alcoholic because he only gets drunk a few nights a week. My lawyer says that if the drinking becomes a problem, then I can take him back to court whether it's in the parenting plan or not (which makes sense). The thing is, Ex is somewhat afraid of the parenting plan so if that is in there, then at least for now, he is a lot less likely to push his luck than if it is not.

Unless you have hard evidence that dad has an alcohol problem it could be difficult to get a judge to order that, and again, it would be extremely difficult to enforce. Your attorney is also correct that its an issue that can be addressed if it becomes a problem.

Originally we had a statement that he and I had to be the ones to pick up and drop off the children for visitation. Now he wants that to say that he or his fiance or another family member can pick them up and drop them off. This is not too big of a deal, except that his visits are supposed to be with him...not his girlfriend or anyone else.

It would be difficult to get a judge to order that one. The norm is that any responsible person, known to the child, can assist with transportation.

Originally we had a statement that said that if he had to be away from the children for more than 4 hours, I would have the right of first refusal before he could leave them with anyone else. Now he wants that to say that if he or his fiance can't be with them overnight, I will have the right of first refusal. On this one, my attorney says that if he leaves them somewhere one time, it's not worth me pressing the issue, but if it becomes a pattern where he's dumping them with someone every time he's supposed to see them, then I can pursue that whether it's in the parenting plan or not.

While I agree with you that "his fiance" shouldn't be included, again, your attorney is right that this is an issue that can be addressed if it becomes a problem.

Originally the visitation schedule said that the noncustodial parent could have 4 hours visitation with the children on their birthdays or the Sunday following. Now he's taken that out and says that he's ok with just seeing them the weekend before or after their birthday (since he'd have every other weekend anyway). My concern is that both boys have summer birthdays so in theory he could schedule his summer weeks such that I would not get to see the children for the two weeks surrounding their birthdays. I don't really expect him to use his summer visitation at all, but if he realizes that he could keep them away from me on their birthdays, he might just to spite me.

I don't think this one is a hill worth dying on. You can always celebrate their birthdays when they are with you.

I also want something in there that says that if he doesn't exercise his visitation on a day when I have to work, then he's responsible for the cost of child care in order for me to work. If he's supposed to have them on a Monday when they're out of school, daycare is $50 for me (precisely why he doesn't take them). When he's supposed to have them every other school break or for the days surrounding Thanksgiving and Christmas (or in the summer), it costs me $250/week for childcare if he doesn't take them. Again, the biggest reason he won't take them on those days is because he doesn't want to be responsible for their childcare. My attorney says there's nothing we can do about that...it's just my responsibility as the custodial parent.

I disagree with your attorney on this one. I have seen many judges order an NCP to cover daycare if they do not exercise their parenting time on a day that the CP has to work.

Those are the ones that I can remember off the top of my head that he removed or changed after the mediation.

Now, in the mediation, my attorney convinced me to drop my request for back child support for the first 8 months that we were separated, to allow him to take the income tax deduction for one of the boys (he said it wouldn't make that much difference for me...this year it made a $2400 difference!), to accept substantially less child support than the presumptive amount, and to give in on several other issues in the visitation schedule. I would either like to go back to mediation on the whole mess, or to overturn the mediation agreement and let a judge decide the whole case. My attorney says neither of those is an option at this point. The other attorneys that I've consulted don't want to say too much to someone else's client but have said that even though I have a valid malpractice claim against him for some other issues, it would be difficult, if not impossible, to get the mediation agreement thrown out unless I can show fraud on the part of my ex and his attorney. I just have a hard time believing that if my legal counsel was incompetent or clearly not acting in my best interest, the agreement is still binding.

I appreciate your thoughts!

Its never too late to change your mind if nothing has been signed...after all, your ex changed his. However if the mediation agreement was signed, you may very well be stuck with whatever was agreed to in mediation.

If a judge had to decide about child support, it would be guideline child support. Child support is also not "fixed" forever. You will have the option of filing for a modification of child support in the future.

I have to say though that alot of what you are asking for you probably would not get from a judge...or if you did get it, it would be difficult or impossible to enforce.

Let this be an object lesson for the future. If you ever end up back in mediation regarding your children, make sure that the mediation agreement covers ALL of the issues, even if you believe that some issues were previously agreed.