If you are in divorce mediation or are planning to begin divorce mediation, hiring an attorney can protect your legal interests. A mediation attorney helps make the process of mediation easier and smoother while protecting your rights with respect to community property, custody, child support, and spousal support. Although parties are the ones primarily liable for negotiating in mediation, a mediation attorney is still an invaluable resource to have in both divorce mediation and collaborative divorce. A good mediation attorney will provide background on the mediation process and counsel you on relevant legal issues. In mediation proceedings, a mediation attorney is also referred to as ‘independent legal counsel’ or ‘consulting attorney.’
Evaluating the Decision to go to Mediation
A party who is interested in going to divorce mediation must first determine what their goals are for choosing mediation over litigation in court. Not all goals can be fulfilled by mediation, and it’s important to get a clear picture of what you hope to achieve. Consulting with a lawyer on these issues can help you evaluate whether or not divorce mediation is a good idea for the case. Some common goals that may be served well by mediation are:
- Save money on legal fees
- Save time – contested divorce cases can last years.
- Preserve your relationship with your former spouse
- Maintain privacy
- Keep control in making decisions
In advising a client on whether to pursue mediation a lawyer will consider the client’s capacity for the process. Factors like personality, history of abuse, working relationship with the other spouse, power imbalance, and income difference weigh upon the feasibility of mediation. For example, a client who was the victim of domestic violence at the hands of the other party may not be suited to advocating for themself in divorce mediation.
Divorce Mediation Attorney’s Role
If the lawyer advises the client that mediation is a good option, and the client agrees with the lawyer, the first issue that must be tackled is the role that the attorney will play during the process.
Clients may come with a misconception that lawyers will argue on their behalf in mediation like attorneys would in court. This is not necessarily correct. In divorce mediation, the parties themselves are primarily responsible for negotiating. In fact, the attorney does not directly participate in the negotiation process, and any contact between the mediator and attorney is limited. The role of a divorce mediation attorney (consulting attorney) is more akin to that of an advisor. Throughout the process, the attorney can answer the client’s mediation questions and explain the relevant law to empower the client in their negotiations. Despite this seemingly limited role, there are still a wide variety of tasks that an attorney can help with, such as:
- Finding a good mediator
- Setting rules for mediation
- Writing agreements
- Organizing information and documents
- Hire experts
- Explaining the relevant law
- Assessing the progress of negotiations
- Reviewing draft agreements
The roles that an attorney plays during mediation often aren’t reduced to writing. There are two reasons for this. The first is that it would be impractical to list down all the roles that an attorney will perform for a client. The second is that an attorney’s roles usually evolves along with the mediation process itself.
A discussion of attorney’s fees and the payment terms are also helpful at this stage. This may be reduced in writing in order to avoid confusion and ambiguity.
Selecting a Mediator
Finding a good mediator is one of the most important tasks that a mediation attorney can help with. Parties usually don’t have any idea where to start in selecting a mediator, and an attorney can help point them in the right direction. Mediation attorneys often make recommendations to their clients for mediators they’ve worked with in the past. The decision is still up to the client, but it’s a good place to start.
