3 Ways a Consulting Attorney Is Worth the Expense in Divorce Mediation

By: Susan E. Guthrie, La Jolla Mediation
Last Update: March 14, 2018

There are three ways a consulting attorney or review counsel in your divorce mediation will save you time, money and effort.

So, you and your spouse are getting divorced and have agreed to mediate in order to reduce the legal wrangling and costs. Great choice! After all, why pay for attorneys when your mediator can help you make all the necessary decisions and handle all the paperwork for you? But now your mediator raises the possibility of one or both of you having "review counsel" or a "consulting attorney" during the mediation process. But why? Wasn't avoiding the expense of individual attorneys and acrimony of litigation the whole point of choosing to mediate?

While it is true that the divorce mediation process does eliminate the need for the parties to retain counsel to represent them in the divorce proceeding, there are THREE good reasons to consider retaining an attorney to advise you as you proceed through the mediation process.

1.  Specific Legal Advice

As you work your way through the mediation process and discuss the issues of your divorce, your mediator will provide you with a general understanding of the law pertaining to each issue so that you have a basis for your dialog and negotiations with your spouse. However, always remember that your mediator is a neutral and even if they are an attorney, they are not representing either of you in the mediation process. They are there to support you both equally, and by necessity, the information that they provide will not be specific to either of you but will be impartial in nature.   Bottom line, your mediator cannot give you legal advice. This is one place where your own attorney, acting in a consulting capacity, can be invaluable. 

As you work with your spouse to negotiate the terms of your divorce, often questions will arise in your mind as to what the best course of action for you to take would be. Should you pay more alimony for a shorter period or a lesser amount over a longer time frame? Would you be better served by keeping the marital residence alone or continuing to own it jointly with your spouse with an agreement to sell it later? There is no end to the questions that can arise in a divorce mediation and the uncertainty can be paralyzing, which brings the mediation to a halt if you cannot make decisions. 

Having an attorney that you can consult with gives you access to legal advice specific to you and your goals and will help you to move forward with the mediation. Although there will be some hourly charges for your attorney's time, the benefits derived in being able to continue to move forward in the mediation and make informed decisions is well worth the money and will save time and the expense of delaying your mediation process.  

2. Coaching

One of the great benefits of mediating your divorce is that you and your spouse retain control of all agreements reached. Unlike the litigation process where a judge can impose a decision on the parties, mediation allows the parties to make all decisions based upon what they feel is fair in their situation and best for their family. The mediator is there to facilitate the necessary conversations about each issue so that agreements can be reached. This means that each party must negotiate for themselves in the process. While some people may be comfortable with negotiation, certainly most people do not have a great deal of experience in this area. This can be compounded by the fact that you are negotiating with your husband or wife under often difficult circumstances, which can add an additional layer of complexity to the process. Here again, a consulting or review attorney can be extremely helpful to you. 

A family law attorney negotiates every day -- that is the nature of the job. Your attorney can work with you at any stage in the process to help you to put your best foot forward in negotiating for yourself. This can include discussions of a proposal made or to be made, strategy and establishing priorities. In fact, many people find that a session with their attorney before their next mediation session to be very worthwhile. Again, there will be an hourly fee for your attorney's time to coach you, but you will be better prepared and more confident in your next negotiation session. This will assist you in making those necessary final decisions.

3. Document Review

Upon the successful completion of your divorce mediation process, you and your spouse will have reached an agreement on all the necessary elements of your divorce, such as property settlement, child custody and access schedules and support issues. The Court will need everything reduced to a written agreement. This agreement is a legal contract between you and your spouse and will outline your legal rights and responsibilities for many years to come. In other words, it is a very important document that you should not sign until you are sure you completely understand its provisions and that they correctly outline the agreements that you reached in mediation. 

At this point, even if you did not consult with an attorney during the mediation process, it is imperative that you retain review counsel to go over the provisions of the contract with you in detail. Most divorce agreements are quite lengthy and can be confusing. There is no substitute for reviewing each section of the agreement with your own attorney to ensure that the agreement is correct and to save you from costly mistakes or misunderstandings in the future. Your review counsel's hourly fee to review your agreement with you and to propose any necessary revisions is money extremely well spent.  

All in all, having a consulting attorney to refer to on an as-needed basis during your divorce mediation for legal advice, coaching and document review is well worth every penny and will help you achieve the best possible outcome in your divorce.

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