The Role of Attorneys in Mediation

People seeking mediation services often inquire as to whether they need individual attorneys while in mediation and, if so, then why choose mediation?

Each party should have an attorney early on in the mediation process. Attorney attendance is not required and one benefit of mediation is that there is the option for the parties to work directly, with the assistance of a neutral, without having their attorneys present. The attorneys work in more of a consulting capacity while the parties negotiate in mediation. The direct work between the parties, as opposed to having the attorneys negotiate directly with one another, gives the parties more control and can help keep the attorneys’ fees down.

However, at times it may make sense to include attorneys in one or more of the meetings. Attorney attendance must be coordinated by the mediator in advance. There is also the option of one or more conference calls between the attorneys and the mediator to coordinate the work being done and help everyone to be working in the same direction.

The attorney’s role is to:

Help the client determine if mediation is a process that is suitable considering the facts and circumstances;

Assist the client in preparing for mediation sessions;

Provide legal advice;

Consult with client regarding terms of a potential settlement (the parties need to rely on their attorneys, not the mediator - who is a neutral - as legal advisors regarding settlement decisions);

Finalize any settlement document (one should never sign a settlement document/contract without first reviewing it with that party’s attorney and obtaining legal advice regarding the document);

Draft/file court pleadings, orders, etc.; and

Handle any court proceeding to include presenting evidence for a divorce (even if an uncontested, no- fault divorce).

So why work with a mediator?

The mediator’s role is to:

Help the parties have discussions regarding change, moving forward with a separation, custody, financial issues, etc.;

Assist the parties with communications and dialogue regarding problem solving;

Working with the parties to identify the issues and what work needs to be done;

Provide parties with resources such as referrals to professionals (attorneys, mental health, financial, etc.), books, web sites, etc.;

Assist the parties in gathering information and data;

Help parties to express their interests;

Work with the parties to generate options for resolution;

Have the parties provide feedback regarding their evaluation of various options and how it relates to their interests;

Looking for ways to reach common ground; and

Summarize progress in mediation.

Often the parties are interested in a process that is not polarizing or adversarial. As a neutral, the mediator works to impart balance to the discussions. There are other non-attorney professionals the mediator can suggest to work with the parties and who may be hired as a neutral to co-mediate (such as a co-parenting counselor to assist with parenting issues, or a financial specialist to assist with financial data collection, tax, valuation, etc.)

Mediation can enable the parties to do a lot of their work directly while minimizing the time/expense of their attorneys. The use of neutrals can help the parties to understand each party’s perspective and work on an interest-based settlement that may be agreeable to both parties. Using the attorneys in a consulting capacity helps to minimize the adversarial nature of negotiations while still enabling the parties to get the legal advice and be protected legally.