Why You Still Need A Lawyer When You Mediate Your Divorce

Having independent counsel will help you be sure that your agreement is fair, complete, and enforceable.

You and your spouse/ex-spouse have made the rational decision to mediate your divorce or modification to avoid the cost, stress, loss of privacy, and uncertainty of litigation. You think you agree on the major points, which include child custody, parenting time, child support, alimony, and asset division. You have chosen mediation because unlike a court fight, mediation allows you to discuss a plan that considers your family’s needs rather than engaging in conflict. Instead of treating each other like adversaries in the zero-sum game of litigation, mediation allows you and your spouse to hear each other out and work towards settlement in a safe, respectful, and confidential forum. Mediation also costs far less than litigation, which can run into six figures in a high conflict divorce.

Your mediator can help you come to agreement but cannot compel settlement or make decisions for you, as a judge would.  Instead, your mediator should be skilled in helping you to identify your goals, in defusing barriers to settlement, in helping you and your spouse communicate your needs and concerns to each other, in helping you find common ground, and in creating a separation agreement that reflects both of your priorities and your children’s best interests. The mediator should also be able to explain current, relevant divorce law.

Why would I still need a lawyer in mediation?

Despite the obvious benefits of mediation over litigation in most instances, most mediators will tell you up front that you still need to have independent legal counsel, some may even have a written disclaimer in your contract cautioning you that you need to retain your own lawyer. This is because the mediator cannot act as an attorney for you or your spouse.  They have an ethical duty to remain completely impartial and unbiased throughout the mediation process, so they cannot advise you on what is in your best interests, on whether the agreement is well-balanced, or on how the law affects you. You need your own lawyer to help you evaluate and make choices, examine your thought process in mediation, answer your questions about the process and the law, and explain the agreement terms and how they will bear out over time.

As your advocate and family law expert, your lawyer can help you determine if agreement terms will benefit you and your family members, whether you should compromise or hold fast on certain elements, and if your agreement is fair and equitable. Through discussions with you, your attorney can also identify missing details, pitfalls, or unforeseen consequences that may not have occurred to you in mediation, and can make your agreement easier to understand and interpret down the road.

What role can my attorney play for me in mediation?

There are different ways you can use a lawyer in mediation:  

•   Throughout mediation:  If practical, the best time to retain your lawyer is before you start mediation.  You may have decided to enter mediation after you have begun a court case and are already represented by counsel. Either way, your lawyer can advise you through the mediation process. With the benefit of having a lawyer from the start, you will enter mediation informed as to the mediation process and the law. Your lawyer will discuss your concerns and help you prioritize your goals and decisions. He or she can answer your questions, examine the consequences of your decisions, make suggestions, be your reality check, help you digest mediation sessions, and help you consider your options to insure that you arrive at a fair agreement. Some mediators may allow your counsel to participate in mediation with you if you feel it is warranted, perhaps due to a tilted power dynamic between you and your spouse/ex-spouse.

•   Document review:  At minimum, you will need a lawyer to review your draft separation or modification agreement and other documents. At this stage your attorney will scrutinize the agreement to make sure terms are lawful, enforceable, fair, and that the agreement satisfies your priorities and concerns. Your attorney can explain any unfamiliar legal terms and may also ask you questions that did not arise in mediation, that could impact the agreement’s future application. 

•   Backup negotiation/litigation counsel:  Finally, in the unfortunate and unusual event that you and your spouse are unable to reach an agreement in mediation, you may need your attorney to take on a more active role in direct negotiation or in litigation if it becomes unavoidable. Of course the same attorney can play all of these different roles depending on the situation and the circumstances.

What kind of attorney should I hire?

It is crucial that you choose a family law attorney who is knowledgeable about and supportive of mediation, perhaps even mediation-trained, although that is not a must. Watch out for red flags — if you retain a lawyer who does not value or understand mediation, he or she might undermine the mediation process by being adversarial and combative, and may push you towards litigation in order to gain a large retainer and generate more fees for himself or herself. In resorting to litigation, you turn over control of important decisions to the court, which will decide matters by issuing orders to the parties, and is usually difficult to predict. This can result in a judgment that may not meet any of the parties’ needs. You will also spend a lot more money, diminishing the marital estate and leaving less for you and your family after divorce.  Your attorney needs to understand and agree that under most circumstances, parties are far better served by pursuing mediation and settlement.

In sum, having supportive, informed mediation counsel can save you stress and expense over time, because even factoring in the cost of individual representation for you both, mediation still costs a fraction of litigation. With the benefit of your own lawyer, you will have the assurance that your agreement is vetted by a legal expert who is focused on your best interests, that it suits your needs, and that it will serve you and your family well in the long run.