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The Role of Consulting Attorneys in Mediation

Many people who come to us to mediate their disputes do so because they do not want to “get lawyers involved”. They are afraid the lawyers will turn things into an adversarial nightmare. Or, as one former client described it, the bobsled to hell. Therefore, it tends to make them nervous when we mention consulting attorneys in mediation. Let’s look at some of the things they do to enhance the process:

  • Give individual legal advice and counsel: Your mediator is neutral and must remain so throughout the process. While we are perfectly qualified and capable of giving individual legal advice, we do not do so in mediation in order to maintain mediator neutrality. We require that you have a consulting attorney to at least review the final agreement with you. Your mediator will give you lots of general legal overview information designed to help you in your decision-making process, but you need to see consulting counsel if you have specific questions.

  • Support you in the mediation process: Sometimes you just need someone to talk to and bat ideas around with in between mediation sessions. Your consulting attorney is there to support you in the mediation process by giving you ideas and suggestions for how you might approach the discussion around certain issues. They should not be adversarial or try to develop “tactics” against your spouse or the family member you are mediating with.

  • Review your agreements and explain the ramifications of the agreements to you: The beauty of mediation is that you are in charge of the decisions you make, and you can find creative solutions for your situation with the help of your mediator who then writes up the final agreement for you.

    Your consulting attorney is there to review that agreement with you BEFORE you sign it. Their job is to carefully explain the ramifications of the agreement so you are informed of your rights and obligations and how the agreement affects them. It is NOT their job to talk you out of the agreement or give you permission to sign it. They will give you feedback on the agreement and it will be up to you to decide which of their comments you want to incorporate into your final agreement, and which you want to leave out.

  • Give “reality checks” as needed: The information swirling around in a mediation session can get confusing and it helps to have someone to give you a “reality check” about whether your expectations are realistic. Sometimes, we send folks to consulting counsel when there is information they need that we cannot provide to them without breaking mediator neutrality.

  • Provide another set of eyes on the final agreement and help with language: Some agreements are long and complex documents that take time to write. We like to have consulting counsel review the agreement as it helps us. Counsel sometimes find things the mediator missed or, the mediator asks them to help with language to clarify the intent of the parties.

    The role of the consulting attorney in mediation is a positive one. They are members of YOUR team to help you as you go through the process. We have a list of people we can give you as a starting point, so be sure to ask.

  • Attorney-assisted mediation: This is rare in family situations, but it is sometimes needed. For some people, the mediation process is too stressful, and they need help to support them during the mediation sessions themselves. When and if your consulting attorney comes to mediation, it is to listen and observe only. They do not speak for their clients or mediate on their behalf. It is still mediation and it is still a client-centered process. However, if a person is struggling, they can ask to speak privately with their attorney. If they need help understanding the discussion, they can turn to their lawyer for help in the moment.

    In the mediation process, consulting attorneys are there to help and support you, not turn the case into an adversarial battle. They have a very positive role to play and we highly respect them for it.

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