SEPERATE ATTORNEYS HAVE A ROLE IN MEDIATED DIVORCE

By Irving H. Zaroff, JD LMFT and Dana Schutz, MA LMFT

A fool despises good counsel, but a wise man takes it to heart.
~Confucius

Divorce mediation is fast becoming the favorite choice for couples seeking divorce. It offers a lower cost, faster process, without leaving the decision to a third-party judge. Mediators are the facilitators that are committed to a neutral position between the parties. Mediators avoid language such as “you should” and “you must.” Only the couple in mediation has power to reach an agreement.

However, mediators do influence decisions in a variety of ways, including informing the parties of the laws that govern divorce which can shape how agreements are made. In the end, the mediators draft a memorandum of agreements or, if the mediator is also an attorney, the actual marital settlement agreement (MSA). A good mediator will then strongly urge each of the parties to have the agreement reviewed by an independent attorney. Many couples, having sought mediation to avoid dealing with attorneys, will want to reject this advice. Among the fears expressed are that the attorney will take control of the divorce and things will get nasty (and expensive).

Much of the experience with consulting attorneys has to do with the attorney’s philosophy and the client’s ability to state their expectations from the attorney. Family law attorneys are experts on the rights and obligations of parties to a divorce. Unlike the neutral mediators, they are looking out just for you. To accept an agreement of such importance without expert advice is risky. A review is an inexpensive insurance policy. The key is choosing an attorney advisor that understands and is supportive of the mediation process.

Some guidelines for choosing an attorney to review mediation agreements include:

  • Upfront agreement with the attorney that they are being retained for the limited purpose of reviewing and advising on the mediated agreements (including the MSA);

  • Having a clear agreement on how much it will cost; and

  • Agreement by the attorney that he or she will not represent you in the divorce beyond the consultant role (this is a common agreement for collaborative attorneys).

Remember, the mediators are neutral. Before shifting into drive, you want to make sure all systems work well!

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