The answer is a resounding Yes! There are many reasons why consulting attorneys help to create durable, practical agreements through the mediation process.
What follows is a summary of the positive effects of using consulting attorneys:
1. Informed Decision-Making: Consultation during the mediation process with an experienced family lawyer can be done in a way that supports the process choice while advocating for the goals and priorities of the client. The consulting attorney provides specific legal advice and answers the client’s questions and/or helps the client form questions during the mediation process. The lawyer’s practical experience and the law can provide valuable reference points and inform the decision-making. That does not necessarily mean that the law has to play a greater role in self-determination – especially when a litigated outcome is often uncertain. The consulting attorney should respect the client’s sense of fairness and respect the choice of a collaborative model. Lack of knowledge about relevant law could create an imbalance or lead to misunderstandings. It could also lead to feelings of regret if applicable law is not put into proper perspective while the decision-making is taking place. While a mediator may provide a general understanding of the law pertaining to each issue as the basis for dialogue and negotiations, the mediator is a neutral and the information provided is impartial. He or she does not represent the interests of either party to the mediation. Rather, the mediator’s role is to facilitate communication between the parties and help them to reach a voluntary resolution to their dispute. (I note that mediators may draw the line differently on the role of the law in the mediation process.)The parties continue to be responsible for the ultimate resolution. A consulting attorney can help move the process forward in a constructive way by helping the client to make informed decisions.
2. Supported Decision Making: Clients who choose the mediation process want to make their own decisions rather than have a judge or other third party make decisions for them. Some clients feel they need the support of an advocate as they move along in the process. This may be due to several factors, including: the nature of the parties’ relationship, the level of financial savvy, the complexity of the negotiation, the level of comfort with negotiations and the individual’s ability to voice his or her own thoughts during the mediation. The lawyer can support the client during the mediation by helping the client prepare for the negotiations and help with the development and analysis of options in the spirit of a collaborative negotiation. Clients who do not want to litigate are entitled to secure the support that they need to reach what they consider to be a fair and reasonable resolution.
3. Working Towards a Binding Legal Contract: The ultimate agreement is a binding legal contract outlining the legal rights and responsibilities of each party. Each client must understand all of its provisions and the impact upon the client and his or her family. Even with full participation in the process with a competent mediator the review of the actual written agreement can be overwhelming under the emotional stress of separation and divorce. The consulting attorney reviews the agreement with the client (outside of the presence of the client’s spouse), provides independent legal advice and makes sure that the client understands and agrees with all of the terms of the agreement. This ensures that the agreement correctly reflects the intentions of the client and avoids mistakes or future misunderstandings. While a mediator can certainly review the agreement with the parties, it is done in an impartial role distinct from the role of independent counsel.
4. Final Thoughts: The role of consulting attorneys should be discussed openly at the beginning of the mediation process. Analysis and advice from an experienced consulting attorney can support the mediation process. The parties have the right to secure the support they need to ensure meaningful negotiations because the parties ultimately have the responsibility for the resolution of their matter. Sensitivity to the clients’ needs and desire for support in determining a resolution of their family matter must be an integral part of the mediation process.
This article was submitted with other materials at the annual conference of the New York State Council on Divorce Mediation held in Albany, NY, May 3-5, where I participated in a debate on the role of attorneys in mediation.