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Whether and When to Involve an Attorney in Mediation

Many couples choose mediation to resolve their family matters.  Mediation gives you control over who facilitates the settlement discussion, over how to structure and pace the process, and – most importantly – over the outcome.  Mediation can be efficient and cost-effective.  Mediation is not, however, the same as representation by an attorney.  The mediator is a neutral, whose role is to facilitate communication between the participants, identify issues, and explore settlement options.  The goal is settlement, not the best deal for you or protecting your best interests.  This raises the question of…whether and when to involve an attorney in the mediation process?

In court-ordered mediation, your attorney may be required to participate from start to finish.  So, the decision may be made for you. 

In private, voluntary mediation, there are many options and no one-fits-all answer. 

First, you need to decide whether to attend mediation with or without an attorney.  If you start sessions without an attorney present, an attorney can be involved in later sessions, especially when there are lasting points of impasse and disagreement.  Cost is probably the biggest consideration.  But there are others, such as senses of confidence and fairness, and whether a party will refuse to mediate if attorneys attend.

Second, preparation with an attorney can go a long way to increasing confidence, sense of fairness, and awareness of the law and settlement options before stepping foot in a mediation session.  This can include debriefs and further preparation between mediation sessions.  This can prevent deals falling apart because you receive input about the terms throughout the mediation process.  It instills confidence in the mediated terms and troubleshoots potential issues your attorney raises along the way, instead of backtracking when it is time to finalize the deal (and may feel too late to back out).

Third, some mediators draft settlement agreements, others do not.  If not, they provide terms to the participants, who in turn hire attorneys to draft, review, and finalize the agreement.  It is worth asking the mediator, at the start, whether he or she will draft the agreement so you know what to expect.  If you have not consulted with an attorney before, now is definitely the time.  If you sign an agreement without consulting with an attorney, you need to expect that you will be held to the terms of that agreement, regardless of whether you read or understood it.  An attorney can explain the terms to you, draft or revise an agreement, and advise you about advantages and disadvantages of the agreement and issues that may have been overlooked.  If you have not consulted with an attorney before now, though, you may learn information for the first time that makes you question whether to follow through on the mediated terms.  Or, you may find that the attorney does not recommend the deal if he or she thinks the terms are not in your best interest.  The chances of this are reduced by working with an attorney earlier in and throughout the mediation process.  It is difficult to resume mediation after one participant refuses to honor terms that everyone thought were in agreement.

Lastly and later on, you may find that the agreement is no longer practical, or circumstances have changed, or the other person does not follow through.  Depending upon your settlement agreement, you may be required to return to mediation.  In that case, its back to the same considerations of whether and when to involve an attorney.

Lindsay Parvis, Esquire is a trained mediator, providing private mediation services.  She also represents clients in all stages of the mediation process.

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