Forrest (Woody) Mosten

Mediator and Collaborative Attorney

Certified Family Law Specialist

Mediation / Collaboration of Premarital Agreeements

The mediation/collaborative model that I use is as follows …

After raising the issue of a Premarital agreement, the parties call a neutral mediator. Forrest explains that he would be happy to assist Fred and Wilma in formulating a Premarital agreement, but would like to do it in a neutral collaborative manner. He tells them that it will be necessary for both parties to have their own lawyers to advise, review, and sign off on the agreement.

Forrest then suggests the following procedure …

First, Fred and Wilma will come to visit Forrest for an initial meeting. Forrest will first make it clear that he represents neither party and serves as a neutral to give both parties a joint and positive input to benefit their marriage. Forrest will then explain the mediation/collaborative approach to crafting Premarital agreements which will include:

  1. Generally, both parties will meet jointly with the mediator to work out all of the issues. Sometimes, a neutral therapist and/or a neutral financial professional will join the meetings. The intent is for the agreement to be client-driven with the mediator providing a menu of choices available for Premarital agreements and helping the clients craft an agreement that meets their interests and objectives.
  2. If, during the course of the mediation, there are minor issues to be resolved that cannot be resolved in the mediation without the lawyers present, they will be resolved in a mediation session to which the lawyers will be invited. Again, the model is that the lawyers are acting more as facilitators to help the parties construct the financial foundation of their relationship, rather than “hard negotiators” as one would be representing the buyer or seller of a piece of real estate where parties have strong adverse interests.
  3. Either party is free at any time to speak individually and confidentially with her/his lawyer.

Forrest will neutrally produce a draft of a Premarital agreement for consideration by the parties. After revisions of the agreement by the attorneys and further meetings as necessary, the draft will be reduced to final form and signed in a joint ceremony with the parties and both lawyers present.

In using this model, virtually all recommendations for changes have been embraced by both of the parties and both of the lawyers. Indeed, the process seems to encourage investment by all concerned to produce the best possible agreement, having in mind the parties have, at the beginning of the process, agreed on their objectives.

I have found the above model to improve the tone of the discussions and help the family.

I believe that the principal features of this model are as follows:

  1. Depolarizing. The key feature of the model is the clients’ meeting with the mediator and with specially trained collaborative lawyers. The atmosphere of the negotiations is much less polarized and adversarial. There is no demonizing of the other lawyer, who remains largely unknown to the opposite client under the traditional model. Encouraged by the mediator, both lawyers get to be helpful problem solvers, instead of the good guy and the bad guy.
  2. Direct Communication. Communications are much more direct under the mediation model. There is no indirect discussion which depends on the lawyers to pass messages back and forth between the clients.
  3. Interests, Not Positions. The focus of the conversations is on the interests of the parties, not their positions. The parties are encouraged to emphasize their non-financial interests (such as nurturing their relationship) as well as their financial interests. This produces agreements which are more likely to satisfy the interests of both parties and contribute to a long and happy marriage.


While the mediation/collaborative method may not be appropriate in every case, this model proposes a positive alternative to the traditional adversarial model. The particular approach outlined is flexible, and can be altered to fit the clients’ needs and concern. This would seem to be particularly true in the management of Premarital negotiations which, after all, are about the stability and happiness of the family. The method of the negotiation should really serve as a positive metaphor for the relationship of the parties and the financial structure of the marriage.

© Forrest S. Mosten

Certified Family Law Specialist
Board of Legal Specialization, State Bar of California