WHAT ARE THE ADVANTAGES OF A MEDIATED PRENUP

1. WHAT ARE THE ADVANTAGES OF A MEDIATED PRENUP? A mediated prenup or a mediated postnup may confer some advantages for couples who are concerned about costs – both emotionally and financially. A mediated prenup or postnup does not assume an adversarial position, which is typical of representation by an attorney. Instead of an attorney taking an advocacy position for only one side, a mediator remains neutral and is bound by law to stay neutral through safeguarding the fairness and transparency of the procedure for both parties. Let’s review: Mediation by a mediator: Neutral toward all parties. Transparent process for all parties involved. Shared communication with all parties involved. The parties are walked through the process toward the final draft of the pre- or postnuptial agreement and through the disclosure of assets and liabilities to each other. Confidentiality extends to communications between the mediator and the parties; for example, nothing discussed in mediation sessions can be disclosed at a later time by the parties or by the mediator. In particular, discussions between the mediator and the parties cannot later be used against either party in a legal proceeding, such as divorce. Offered by JustPrenups as a flat-rate package of services.

2. Representation by an attorney: Zealous advocacy by the attorney for only one side’s best interests. No disclosure to the other side about process. Only certain communications are shared with the other side, as the attorney has the duty of confidentiality only to the one party who is the client. Parties reach agreement through the opposing attorneys acting for each side’s best interests. Confidentiality is owed to the client only and not to the non-represented party. Confidentiality extends on all matters disclosed by the party to the attorney for the purposes of representation, and the lawyer’s duty of confidentiality is permanent, extending even beyond the death of the client. May be a flat rate, but often billed hourly to accommodate the number of drafts written, the number of concerns raised, and the number of phone, Zoom, and email communications with the attorneys. Many couples who are considering a prenuptial or postnuptial agreement, or a cohabitation agreement, do not realize that another option is available beyond the traditional adversarial representation associated with attorneys, which can be off-putting to one or both parties when starting a life together. Mediators seek to reassure both sides that they are in a neutral environment that typically feels friendlier to both partners, which is the point: JustPrenups wants clients to embark on planning their future together out of love and concern for each other’s welfare. What better way to show that love and concern than through protective planning for all parties? Please see our blog post, Cross Cultural Perceptions of Prenuptial Agreements, which addresses prenups as a means of protective financial planning for the family (and for the business, if you and/or your partner own a business), with the prenuptial agreement being only one tool among others, such as wills, advanced medical directives, and naming beneficiaries, for example. In this regard, you may shift your thinking of prenuptial or postnuptial agreements to see them in the same fashion as car insurance, security cameras, medical insurance, seatbelts, and the like, which are protective, helpful devices in case of the worst-case scenario. You really don’t want to need those items either, but if you do, they can save your well-being financially and physically. In addition, if a client divorces and challenges the agreement, mediators who work with a couple are situated differently from lawyers who represent an individual. Mediators can testify in a divorce to the integrity of the procedures used to draft, to facilitate disclosure, and to certify the agreement. A mediator can show the history of both parties’ consent to the agreement. JustPrenups employs a method with time built into the process for each side to consider every step of disclosure and every draft version of the agreement. The mediator can demonstrate that adequate time was allotted for both sides to consider the final draft and to obtain counsel from individuals outside the couple. If a client is represented by an attorney and then divorces with the agreement’s validity contested in the divorce, that attorney can only reiterate arguments about why the agreement was fair to, and consensual for, both sides. In a divorce, a party represented by an attorney is still owed confidentiality by that attorney. Likewise, the mediator also has a duty of confidentiality, but that duty extends to both parties equally and to all the content in communications between the parties and the mediator, pursuant to the Mediation Confidentiality and Privilege Act enacted in Florida on July 2004. Is mediation necessarily better for the both of you as a couple? Is mediation better for you as an individual? At JustPrenups, we cannot advise you as to which approach is better suited to your needs. We can identify the pros and cons of both approaches, and you can decide what is a better fit for your

3. needs as an individual and as a couple. Our approach is not “one size fits all,” and you may need to consult with us to determine the best path. Mediation is an option, but if you are better served by representation, our sister company, DADvocacy, can meet your needs.