CONSULTING ATTORNEYS IN DIVORCE MEDIATION
In divorce mediation either party may choose to hire a consulting attorney with whom to meet one-on-one before the mediation begins and between mediation sessions. The consulting attorney’s role is to educate the client about the law and legal rights, to help the client discern, prioritize and articulate his or her goals, to coach the client on how to present proposals in mediation, and to analyze options presented by the other party.The ideal consulting attorney will have experience as a mediator as well as past experience as a litigator. The mediation experience helps the consulting attorney know how to coach the client on how to present proposals in mediation. The litigation experience enables him or her to inform the client as to what the divorce process would look like and how much it would cost if the client were to opt to litigate instead of mediate.
The consulting attorney should stay behind the scenes and not intercede in the mediation unless the mediation contract explicitly provides for the direct involvement of consulting attorneys in mediation sessions. In divorce mediation the negotiation is most often done directly between the parties with the mediator present and acting as a neutral negotiation facilitator. The role of the consulting attorney is to provide outside support for an individual party. This access to outside support helps to balance the power between the parties.
In helping the client to discern his or her goals, the consulting attorney should encourage the development of reasonable expectations for a fair and economical settlement. This function is very different from that of the traditional adversarial attorney whose “zealous advocacy” often leads to excessive demands being made in order to coerce a settlement that unfairly benefits the attorney’s client at the expense of the other party. This adversarial approach escalates and prolongs conflict, causing high legal fees. In contrast, one of the purposes of mediation is to avoid the escalation of the disputed legal issues.
Mediation generally does not require a party to use a consulting attorney; but parties who decline to do so are assuming the responsibility for and risk of acting as their own legal counsel. Many mediators encourage the parties to see a consulting attorney at least at the end of the mediation to have the proposed marital settlement agreement text reviewed. The consulting attorney will go over the entire proposed marital settlement agreement text with the consulting client, making sure he or she understands the consequences of it and sometimes suggesting rewording of certain provisions depending on the client’s expressed goals. The time needed for a consulting attorney to review and discuss a proposed marital settlement agreement text with the client is often two to three hours, but more time would be required for a complex agreement.
In the event that the mediation negotiation does not result in a full and compete settlement, each party has the option of retaining his or her consulting attorney to take over and conduct negotiations between the attorneys or pursue court litigation. Being able to switch the role of the consulting attorney to litigator spares the parties the expense of having to start over from scratch with new attorneys.
A consulting attorney, seen before mediation has begun, may help a client assess whether mediation is the most suitable process for the case, considering the parties’ personality types, relationship dynamics, and history of conduct. If the client or consulting attorney has concerns about the suitability of mediation, the consulting attorney may explain other divorce process options including cooperative divorce or collaborative divorce. In some cases, a consulting attorney may recommend that the client utilize the traditional adversarial system, with a litigation lawyer handling all the negotiations and engaging in court litigation to the extent necessary to protect the client’s rights. Traditional adversarial litigation may be the most suitable process where the party on the other side is hiding assets, has a skewed sense of entitlement, is behaving vindictively, or has a history of coercive psychological control, domestic violence, or criminal violence. The consulting attorney can assist the client in determining whether these “red flag” indicators exist.
(Copyright 2014 by Faith Jansen. Faith Jansen, Attorney at Law, does divorce mediation, cooperative and collaborative divorce, pre-marital agreements, post-marital agreements, juvenile guardianships, and adoptions, in Walnut Creek, Contra Costa County, California. See her website at: www.fjansenlaw.com and find her on Facebook at Faith Jansen Attorney at Law.)