Divorce Mediation does not require that each spouse separately consults with an attorney.
However, the use of attorneys is complementary to mediation. It can be highly beneficial to the parties and the effectiveness of the mediation process.
A lawyer’s advice can benefit your mediation process in the following ways:
- Make a fully informed decision with all the relevant information about your legal rights and responsibilities
- Advise you about a fair and most likely settlement if the issue(s) were litigated
- Ensure that the written mediated agreement has the legal effect intended
- Minimize the possibility of future legal actions or re-negotiation by each party being fully-informed with the agreement
Attorneys: A Unique Role in Mediation
While mediators can provide legal information. This includes how family law courts generally work with divorce and what factors are considered in a ruling. As impartial professionals, a mediator cannot provide legal advice. Projections of how a judge would rule in a certain case or the implications of complex legal issues should be done by attorneys.
If you are not thinking about how you are working with attorneys, you may be wasting resources or eroding the mediation process.
Below are 5 Best Practices for Getting the Most from Your Attorney During Mediation
1. Establishing Attorney Expectations
Clarify with your attorney that you are seeking advice for the purpose of supporting a successful, fair settlement in mediation. Confirm that the attorney you selected is comfortable with that role. Lawyers that have some training in mediation or collaborative law, are more likely to understand and counsel you accordingly.
2. Consider the Timing
The beginning stages of any divorce process are heavily weighed towards gathering information, including a comprehensive financial inventory and valuation of all marital assets, debts and property. In divorce mediation, that is followed by discussion and negotiation of proposals for dividing assets and debts.
If you wait until your assets and debts are summarized and organized, you have much more accurate information to bring to your attorney consultation, and more precise questions to ask them. Similarly, if you have already discussed some proposals for the financial division, you have something specific on which to obtain their feedback.
3. Attorney as Protection
Since mediation negotiations are confidential and you are not obligated to conform to any mediation proposal (even draft written agreements have no authority until you sign and date them), there is no risk in talking about options prior to getting advice from a family law attorney.
Similarly, you might want to express to your mediator and spouse that anytime you reach what seems like a mutually acceptable proposal, that you will want to have a week or two to consider it further and obtain some legal advice before you can more solidly accept it. You may also take a break during a mediation session to call your attorney for advice. If your attorney participates in the mediation session, they can alert you about any legal implications with matters you are discussing.
Experienced divorce mediators should draft agreements that legally accomplish the terms of the settlement and protect each party’s rights and responsibilities. However, some mediation clients like to take the final mediated settlement agreement to their attorney for advice about adding or refining some of the language to further ensure they are legally protected.
4. Get all the Information
Family Law Attorneys often provide people with a range of possible outcomes for any legal issue, from the best-case scenario to the worst-case scenario. What is more helpful is for the attorney to provide a projection about the most likely, fair, and reasonable outcome for that issue.
In other words, if you are not able to come to an agreement on the issue in mediation, (such as amount and duration of spousal support), and you ended up with two attorneys litigating the issue, what is the judge likely to rule or where are the attorneys likely to settle? If you and your spouse each have this information during the mediation process, it can help you come to an agreement in that range while avoiding the costly and time-consuming litigation process.
If, as your advocate, your attorney is providing you with best-case scenario advice, ask them to predict how much in legal fees, how many months it will take to get there, and how likely that is to happen. This more comprehensive information will help you make more informed choices about a fair settlement in the mediation process.
5. Focus their Involvement
When the core function of an attorney is as a consultant to support the divorce mediation process, you should clarify with the attorney that they will do no work outside of their meetings with you unless you specifically request it. This way you can be assured that they will not erode the productivity of a mediation process with more historically adversarial litigation tactics.
One significant way to ensure your attorney is supporting your mediation process is to clearly communicate that they will not be retaining them as your legal counsel to litigate the case if for some reason it is not successfully settled in mediation. This step will ensure that there is no incentive for the attorney to coach or encourage you away from a productive and equitable settlement in mediation.