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Mediation and Lawyers

A common question at my initial free consultation with clients is, “Will I need to have a lawyer?” or, “Am I going to have to hire a lawyer?”   Clients often have a look of surprise on their face when I tell them “ You are not required to consult with an attorney but I strongly encourage it.”  You may wonder whether they are surprised at the fact that they are not required to consult with an attorney or at my strongly encouraging them to do so.  The answer is both.

Before we explore the issue of the role of lawyers in mediation, we need to distinguish between several types of mediation.  This article will be focusing on mediations that typically involve just the parties without attorneys. Another form of mediation is what is often called “Lawyer-Assisted Mediation”.  As the name implies, that form of mediation occurs with clients and their lawyers together with a mediator. When dealing with “Lawyer-Assisted Mediation” the question is not whether clients should consult with attorneys but rather, what is the role of attorneys in the mediation itself.  That question is for another article

The focus of this article is on a common form of divorce mediation where the mediator meets with the clients without attorneys present.  Can clients involved in this form of mediation go through the whole process without an attorney? Yes. Is that the best practice? No.

Let’s take a step back.  If the mediator is an attorney, there is sometimes the mistaken conclusion that the attorney/mediator represents both parties. That is not at all the case. The attorney-mediator cannot and should not represent both parties. Not only would it be a conflict of interest to do so but it would be almost impossible for the mediator to maintain neutrality and do that.  The attorney-mediator can provide both parties with legal information but cannot provide clients with legal advice. The distinction is sometimes fuzzy but should be clearly delineated to the parties. Here is an example. As a mediator, I can explain to the parties that Massachusetts has Child Support Guidelines. I can go over the guidelines and help the parties fill out the child support guidelines. I can even go over with the parties what the guidelines include, what the goals of the guidelines are and how they are applied. What I cannot do as a mediator is tell the parties what I think they should agree to for child support or if they should even apply the guidelines.  That would be legal advice.  On the other hand, it would be appropriate to explain to parties that they have the option, if they agree, to deviate from the guidelines or to use a completely different paradigm altogether for supporting their children.

So, why should clients consult with an attorney?  I explain it this way.  One of my goals as a mediator is to make sure that my mediation clients have all the information they need to make an informed decision.  I want to make sure they have disclosed, shared and exchanged financial information and any other relevant information needed to reach an agreement. I can provide them with legal information like what the framework is, how the process works etc. I see legal advice as a piece of information which as mediator I cannot provide but that they each should have as part of their decision-making process.  It is part of their due-diligence.

Some clients come into the mediation process with the absolute clear intent to not involve or ever speak to an attorney. Sometimes, this may purely be driven by finances. They do not want to pay the additional cost of consulting with an attorney. Sometimes it may be driven by a bad experience they had with a litigation attorney or a friend or family member had while engaged in litigation and they want nothing to do with that.  Sometimes, one party plans to speak to an attorney and the other does not.

Ultimately, the decision to consult with a lawyer is an individual decision that each party should make.  You may end up with one party consulting an attorney and the other party not doing so. 

So, one of the reasons why clients should consult with an attorney is so that the client has all the information he or she needs to make an informed decision. Legal advice is an important piece of information.

Why else, might it be beneficial to consult with an attorney? At the end of the process, the agreement clients reach is presented to a judge and the judge has to approve the agreement.  The judge is going to want to have confidence that both parties fully understand the agreement and its implications. If a judge sees that parties have mediated an agreement, particularly if the mediator is known to the judge, the judge at least has some confidence that the agreement has been reached after a full discussion of the issues, pros and cons and possible consequences.  If each client has consulted with an attorney before signing an agreement, this provides the judge with an extra level of confidence that the clients not only have discussed issues at mediation but have signed the agreement after getting legal advice about their respective legal rights and obligations.

If clients are agreeing to something that is unusual, it is particularly helpful to be able to tell the judge that the parties have consulted with their own attorneys and understand the implications of their actions and have considered those implications with an attorney.  

There are times when consulting an attorney may not be absolutely necessary. An example might be a couple that has been married for a very short time ( let’s say a year), have no children together, no real estate, no assets or debts and really just need help with a simple divorce agreement that allows them to get from A to B- married to unmarried.

Finally, remember that ultimately one of the goals in mediation is for the parties to retain control of their life.   The purpose of consulting with attorneys is information.   After consulting with an attorney each party has control of what they do with that information. They could decide to bring it back to mediation to discuss concerns that your attorney raised. Or, they may decide that they already discussed the issues raised by their attorney in mediation and feel comfortable with the agreement reached.

If you are in mediation and looking to hire an attorney to consult with while in mediation, it is important to choose the right attorney.  I suggest that you look for an attorney who is supportive of the mediation process and will not try to derail the process.  You want to find an attorney who will not simply rubber-stamp the agreement you have reached but rather look at it critically from your lens and at the same time be cognizant that you have chosen to mediate rather than litigate and the importance of that in your decision.  Maybe a simplified way of thinking about it is you want an attorney who will not be a rubber stamp and not be a bulldozer. You want a lawyer who will look out for your best interest while also being a team player in helping both of you reach an agreement.

In the final analysis, the decision to consult with an attorney during mediation is the individual choice of each party.  I suggest that you at least weigh the pros and cons of hiring or not hiring a lawyer before assuming that you do not need a lawyer or do not want to spend the money while in mediation.



Oran Kaufman

Oran Kaufman has been a mediator since 1994 and runs Amherst Mediation Services in Amherst, MA where he concentrates his practice in the area of divorce and family mediation.  He is also co-owner of ConflictWorks which provides conflict resolution training for organizations and businesses.   He is a former president of… MORE >

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