Best of Both Worlds. Mediate your divorce and have an attorney mediation consult during the mediation process.
There are many good reasons to settle family law issues through mediation.
- It is cost effective.
- It is a more cooperative process with less acrimony.
- It is less adversarial than litigation.
- Mediation completes more quickly than a litigated case.
- Parties can enter into interim agreements to maintain the status quo or address transitional issues while the mediation is ongoing.
- Couples and individuals receive the benefit of avoiding high attorney fees yet can still have an attorney mediation consult of all mediated agreements reviewed by an attorney prior to signing.
As a mediator, I always encourage my clients to have counsel ready to provide an attorney mediation consult before signing any mediated agreements. Despite my recommendation, clients resist obtaining an attorney review. Why?
Clients are often concerned about the cost of having an attorney review a draft mediated marital settlement agreement.
A consult fee from an attorney who reviews a settlement agreement will typically involve only 2 to 3 hours of their time. This is manageable and does not involve paying a large retainer for unlimited representation.
Despite the limited cost of an attorney consult, many clients hesitate to have their proposed agreement reviewed by an attorney.
Clients are often concerned about the possibility that an attorney will attempt to sabotage the mediation process.
Another reason besides cost as to why clients avoid hiring a consulting attorney for advice and counsel is that they fear that the attorney will sabotage the process or the agreement and create more conflict.
Part of my job as a mediator is to help clients find a mediation-friendly consulting attorney.
A client who has chosen mediation wants someone to support them in mediation. They do not want an attorney to turn the process into a negotiated divorce with two more adversarial attorneys. I provide my clients with a list of attorneys whom I know are supportive of mediation.
This can be helpful because some attorneys will claim to be supportive of mediation, but they are not. When a party calls around and asks attorneys if they are mediation friendly, attorneys or their assistants often say that they are but then immediately suggest a four way meeting with the other side and their attorney. An attorney who suggests negotiating directly with the other side, rather than giving the client advice and sending him or her back to the mediation, is not supportive of the mediation process.
I remind my mediation clients that their attorney is supposed to be working for them. Respecting the desire of their client to mediate issues is the duty of an ethical attorney.
Clients are often concerned about the possibility that seeing an attorney will upset a feeling of trust between the parties.
It’s tough when a person thinks there is an agreement and the other person is going backwards. This can upset a feeling of trust that might have increased between the parties during the mediation process. However, an attorney consult who respects the mediation process does not sabotage trust.
Consulting attorneys help with power imbalances.
If there is an imbalance of information between the parties, or the personal styles of the parties are not balanced, or there are legal complexities, one or both parties obtaining a consulting attorney can strengthen trust in the process of mediation.
Some good reasons to seek out advising counsel are:
- Legal knowledge can help the party prepare for the sessions and be a more effective negotiator for him/herself
- Information about possible support amounts will help the party think about realistic budgets
- Before agreeing to proposals at the mediation session, a party can say she/he needs to think about it. This provides a chance to discuss it with the consulting attorney if desired or needed before agreeing.
- For the more knowledgeable party who is hesitant for the spouse to seek counsel, if the less knowledgeable party agrees to something without getting advice or feels pressured to make a decision, it is easier for that person to challenge the deal in court later. So, it is better for the business owner/person with more financial or legal knowledge to make sure the other party has legal advice to avoid a judge setting aside the hard fought agreement later.
Making a decision to mediate a divorce does not mean giving up attorney support in the process.