When to Consult an Attorney
Informed decision-making by participants is central to the mediation process and my role as mediator. If at any time during mediation we were to conclude that a person was unable or unwilling to participate in this way, we would terminate the mediation. It is important to ensure that both participants clearly understand their prerogative to obtain additional legal information or advice, and to confirm that neither would stand in the other’s way.
You might want to use legal counsel during mediation to make informed decisions. In fact, there are two instances in which we will encourage you to consult with legal counsel. The first is if you have any doubt at any time about a particular issue. Let’s say that I’ve provided you with legal information about, say, division of assets. We’ve discussed it, and perhaps even explored various alternatives for resolving it. But after all is said and done, let’s say that one or both of you remains ambivalent and unable to make a decision. At that time we might turn to that person and ask him or her if they would be willing to consult with legal counsel.
The second instance in which we will encourage you to seek legal advice is when we are finished with mediation and I’ve prepared a draft of your settlement agreement. At the last session we’ll go over the draft line-by-line, page-by-page, making any final changes. However, we won’t let you sign the agreement at that time. There are two reasons for this. First, we don’t want either of you to feel any pressure to sign it. Second, we want participants to have the time for review by legal counsel. Having said that, the decision of whether to have legal counsel review the agreement is entirely yours—just like every other decision to be made in mediation.
We are not suggesting that you must retain an attorney and pay the large retainer fees they typically require. All we would be encouraging you to do is consult with an attorney to get legal advice or more information. In fact, we maintain a list of attorneys for this purpose. We call the attorneys on this list “mediation friendly attorneys,” and there are two qualifications for an attorney to be on our list. One is that they are experts in family law. The other is that their hearts are in the right place. In other words, they don’t have a hidden agenda to stir you up and generate fees. If you go to them for an hour, you pay for an hour.