Attorneys and the Mediation Process
There is most definitely a place for an attorney within the Mediation process, and that is as a consulting or a review attorney. The attorney can either meet with you prior to your commencing Mediation or meet with you at the conclusion of your Mediation to review your Separation Agreement.
A consulting attorney can provide you with the kind of legal advice and advocacy that a Mediator may not, even if that Mediator is an attorney. For example, a consulting attorney can meet with you before or during the process to give you his or her opinion as to how the law would apply to your matter. More importantly though, the consulting attorney can give you suggestions as to what you may ask for in mediation or even how you can raise certain issues to your best advantage.
On certain occasions, if both parties consent, one or both parties’ attorneys can attend the Mediation. However, that does not happen often in family and divorce Mediation since one of the reasons that a couple chooses to mediation is to keep costs down and keep control over the process.
Typically, most parties wait until the Mediation is completed and they have a Separation Agreement before they consult with an attorney. At that point, the role of the attorney is to give legal advice as to the client’s rights and responsibilities and what may likely happen if this matter were to go to Court but also to respect the client’s right to determine the outcome and make the decisions. You can also expect your attorney to suggest changes to language and possibly additional provisions that do not effect the basic terms of settlement.
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Frequently Asked Questions
Q. What Is the Difference Between Collaborative Law and Mediation?
A. Both Mediation and Collaborative Law are non-adversarial alternatives to obtain a divorce, but in Collaborative Law you will have your own attorney act as your advocate while in mediation you advocate for yourself directly with your spouse. This makes Collaborative Law more appropriate for people who feel they do not want to "be alone" with their spouse or feel they do not wish to speak to their spouse and advocate on their own behalf.
Q. What Is the Difference Between Collaborative Law and Having Attorneys Negotiate a Settlement?
A. In Collaborative Law the attorneys are trained to help the parties reach their own resolution with a focus on defining mutual interests and resolving the issues in a way that meets the interests of both parties. In more traditional negotiations, the attorney will work to get the best possible deal for his or her client based upon the party’s (or the attorney’s) stated goal. That goal may not even meet the interest of the client, no less the other spouse or the family. Even in the friendliest of more traditional settlement negotiations, threats may be made and positions may be taken which make it more difficult for the parties to co–parent together after the divorce.
Q. What If My Spouse Will Not Disclose Assets?
A. The Collaborative Law Agreement will provide that the parties must give full and complete financial disclosure. If your spouse refuses to do so, the Collaborative Process will have to end.
Q. Do I Have To Get a New Lawyer If I Litigate?
A. Yes, you will need to begin the process with a new attorney. Because the policy requiring that the attorneys withdraw upon commencement of a litigation is one of the essential aspects of Collaborative Law, you must carefully consider this before deciding to use Collaborative Law to settle your case. If a settlement is not reached, you will incur the expense of new attorney, as will your spouse.
Q. What Will Collaborative Law Cost?
A. As with any process involving negotiation, it is not possible to state with certainty what the fee will be. Each attorney will bill his or her client individually. Attorneys fees, as well as the fees of any evaluator, coaches or therapist, will be discussed and apportioned as you and your spouse agree.
Q. Why Should I See an Attorney?
A. Most people turn to mediation because they do not want to have to retain lawyers, and so it seems contrary to the process to retain an attorney. However, mediation and having your own attorney are not mutually exclusive principles. Your own attorney can give you the kind of legal advice that a Mediator is not permitted to give you. During the mediation, you might find it frustrating when you ask your Mediator questions that fall into the category of legal advice, and your Mediator tells you she can’t answer. Your attorney, on the other hand, is the proper person to answer all of your questions and advise you based upon his or her interpretation of the law.
Q. What Does a “Mediation Friendly Attorney” Mean?
A. Usually, mediators have lists of attorneys that they distribute to their clients, and they tell their clients that the attorneys are "mediation friendly". This means that they are likely mediators or collaborative attorneys themselves and so they respect the process of Mediation. It does not mean that they will rubber stamp your Agreement. A review attorney will let you know what your rights are, possible pitfalls in the agreement, and of course, propose some different language. A review attorney should not try to make you change your mind about terms as long as you are fully informed as to your rights and the ramifications of your action.
Q. What is the Difference Between a Consulting Attorney and a Review Attorney?
A. Not much, and they are used interchangeably. You can meet with your attorney for a consultation before, during or after the Mediation. Or you can wait until you have a Separation Agreement and have that reviewed by the attorney who will then consult with you about the Agreement.
Q. How Much Will This Cost?
A. Most attorneys bill by the hour. You can expect that it will be at least three hours for the attorney to review the Agreement and meet with you.
