There are two reasons why you might want the help of a mediator in coming up with a premarital agreement together: First, if negotiating the agreement on your own isn’t working very well, a mediator can help the discussions go more smoothly. Second, if you want help writing up your agreement, involving a neutral mediator who has participated in the discussions can help ensure that the written agreement will reflect your intentions.
Mediation offers a distinct advantage over the traditional approach of using lawyers. When one partner-to-be asks a lawyer to prepare the agreement on that person’s behalf, this is usually done before there has been any meaningful discussions about what will go into the agreement. As lawyers are paid to advocate for their clients best interests, the draft is likely to be slanted in favor of the partner whose lawyer prepared it, even if that wasn’t the partner’s intention. The other partner may be surprised and hurt when presented with the document. This can set in motion a series of unnecessarily adversarial negotiations that ultimately produce an agreement that nobody feels very good about.
If you mediate, the mediator is working for both of you and is not an advocate for either side. Mediation offers a way to discuss your common values and your differences and to come up with mutually satisfactory decisions in a setting that supports your love and respect for one another. Ultimately, the mediator will prepare a draft agreement to serve as a basis for the written agreement.
Does mediation mean you should forgo independent legal advice? No. Technically, in Illinois you are not required to have an attorney file your prenuptial agreement, but having your own attorney review the agreement for signing is like an insurance premium that it will hold up in court. If you can afford the premium, it may be worth the money. Once you have your mediated agreement, your independent legal advisors are engaged as supporters, rather than advocates engaged in a tug of war. And that’s how to write a fair and lasting prenuptial agreement!
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