DO I NEED A LAWYER?
Many mediations, especially those involving parenting issues, don’t require a lawyer, but there are some situations in which consulting a lawyer is a smart thing to do. It is also recommended that the parties obtain independent legal advice prior to entering into any binding agreement.
In situations involving division of significant assets and large child and spousal support entitlements, it is beneficial for parties to have lawyers. The role of lawyers representing parties involved in mediation is quite different than traditional lawyers’ role. Parties to mediation are less likely to need a lawyer to advocate for them because they are trying to work together to solve their problems - not trying to convince a judge or arbitrator of their point of view. The rules of mediation are few and straightforward, and the mediator is responsible for maintaining the integrity of the mediation process so that the parties can usually handle the process on their own without too much trouble.
However, it is beneficial for the parties to have a lawyer to advice them about their rights and responsibilities since mediators are neutral, and as such, they do not provide any advice to any of the parties. For this reason, if your case involves substantial property or support rights, you may want to consult with a lawyer before the mediation to discuss the legal consequences of possible settlement terms. You may also want to have an ability to discuss and evaluate the possible resolutions to your legal issues.
Many of my clients are referred to me by their lawyers, and in some situations, bringing a lawyer to a mediation session facilitates faster settlements.
Some people do not have lawyers when they first contact me. Some of them believe that retaining lawyers will make the process more adversarial. Many have already reached some form of consensus, and they do not feel that lawyers could assist them. Some clients do not want to have lawyers involved at all. Everyone wants to minimize costs.
I believe that for most clients in family mediation, it is beneficial to have lawyers. In order to negotiate effectively, parties should fully understand their rights and obligations. It is also helpful if they have a good picture of what will happen if mediation is not successful.
However not everyone needs the same degree of a lawyer’s involvement. Some people choose to just have one good consultation with a lawyer prior to beginning mediation. Others prefer to have a lawyer who can answer their questions and suggest solutions throughout the mediation process. Others still bring their lawyers to mediation sessions. Others only retain a lawyer to review the final separation agreement, provide independent legal advice, and to make sure that all matters are taken care of by the agreement.
I believe that in most situations it is advantageous to have lawyers at the mediating table. At the same time, I recognize that it is unaffordable for many clients.