Couples who choose to settle their divorce or other family law issues through mediation, do so for many reasons. It is cost effective, more cooperative and less adversarial than divorce litigation. Additionally, mediation completes more quickly than a litigated divorce. Importantly, people want to avoid the cost and acrimony that comes when lawyers are involved.
Good mediators encourage people to have counsel.
Good mediators will typically encourage clients to seek advice and counsel from separate consulting attorneys. Yet the parties are often reluctant to do so. Why do they avoid having consulting attorneys? For two main reasons: Cost, and the fear that the attorney will sabotage the process and create more conflict. Sometimes one party who may own a business, has more knowledge about the couple’s finances and/or the law. Perhaps there is fear that things will be harder if there is a lawyer influencing the other party.
There is little question that the general public’s view about divorce attorneys is that they are expensive. Everyone has heard stories from friends, family or co-workers who have spent tens of thousands of dollars for their divorce. Stories abound of long term involvement in the divorce process. Often folks feel that they did not get a good resolution. They believe that they “lost.”
Even mediation clients who initially don’t want to see a consulting attorney, will agree to have an attorney review a draft Marital Settlement Agreement (MSA) at the end of the process. This is better than nothing, but there are some very good reasons to seek a mediation-friendly attorney at the outset. (Some attorneys will claim to be supportive of mediation, but they are not. More on that later.)
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.
It’s good to involve advising counsel early in the process.
The problem with an attorney just reviewing the MSA at the end is that there is no context. He or she won’t necessarily understand why the client agreed to things. It is impossible for that attorney to be completely aware of the discussions leading to the agreement. Comments just based on the written document may upset the mediation process and leave the other party feeling upset. 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.
Steer clients towards a mediation-friendly attorney.
As for how one should go about finding a truly mediation-supportive consulting attorney. It is best when the mediator provides a list of attorneys whom they know are supportive of mediation. If not the party might call around and ask attorneys if they are mediation friendly, and they will say that they are, and then immediately say: “let’s have a four way meeting.” That is a big red flag.
A client who has chosen mediation wants someone to support them in mediation and not turn the process into a negotiated divorce with two more adversarial attorneys. The parties should keep in mind that they are hiring the attorney, and the attorney works for them, not the reverse. If the consulting attorney tries to start negotiating directly with the other side rather than giving the client advice and sending him or her back to the mediation, it’s time to have a frank talk with that attorney or find a new one.
Consulting attorneys help with power imbalances.
So, as a mediator, 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, it is important to strongly encourage one or both to have consulting attorneys. Explain that it is in their best interest to do so.