Use of Attorneys in Divorce Mediation

Jan 22, 2021

As a divorce mediator, my objective is to inform clients of all the tools and resources available to them. In that process, I am frequently asked, “If we choose divorce mediation, do we need attorneys?” The simplest answer to this question is “Yes.”

Unfortunately, a simple answer is not always a complete one. While the “Model for Standards of Practice for Family and Divorce Mediation” states that a mediator should recommend that participants obtain independent legal representation, it is also true that the standards support self-determination by participants. “Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome.”

Because I am a firm believer in the right to self-determination, I will work with clients whether or not attorneys are involved. However, in my initial consultation with clients, we discuss the valuable role that attorneys can perform in the mediation process.

In short, clients have a choice. They may decide, in spite of what I (or any mediator) may recommend, that they do not want to obtain the services of an attorney. Some divorce mediators will not work with couples unless each spouse engages the services of an attorney. Because I am a firm believer in the right to self-determination, I will work with clients whether or not attorneys are involved. However, in my initial consultation with clients, we discuss the valuable role that attorneys can perform in the mediation process.

How Attorneys Can Assist the Mediation Process

A primary goal of my divorce mediation process is informed decision-making. Providing legal information to clients is a neutral step that I take at the beginning of any mediation. However, an experienced divorce attorney can assist a spouse in making informed decisions by offering legal advice that is based on full understanding of the law and how the spouse’s circumstances would be treated in court. 

During the mediation process, some clients may desire to have their attorney(s) present to offer real-time support and advice. When mediations are “attorney-assisted,” the mediator continues to control the process, while the attorneys assist in promoting understanding. As a trained collaborative professional, I see attorney-assisted mediation as an opportunity to create an interdisciplinary team that promotes outcomes acceptable to all.

Another option that can be beneficial (and usually more economical) involves clients engaging an attorney in a “consulting” capacity, meaning that the client can receive feedback and advice about what has happened in mediation sessions to be better prepared to negotiate effectively with a spouse at the next session.

An Attorney’s Role at the Conclusion of Mediation

When the mediation process has concluded, and the mediator has prepared a written document that includes all of the mutually agreed upon decisions that have been made by the spouses, either or both may engage an attorney in the capacity of “review attorney.” In this role, the attorney can independently discuss these decisions and confirm with the client that s/he truly believes that the agreements reached in mediation are in her/his best interest.

In addition, since the granting of a divorce is a process that must include the court, the services of an attorney will often be engaged for purposes of preparing the legal documents to be submitted to the court. While some clients may decide to do this on their own, it can be a tricky undertaking and may be best given to a legal professional.

Attorney Referrals

I am often asked for referrals to attorneys who may act in any or all of the roles listed above. Since divorce mediation is about two spouses developing their own plan to meet their needs in a life transition, I favor attorneys who understand mediation and support this concept of self- determination. Many of my referrals are made to collaboratively trained attorneys, as there are many parallels between the collaborative divorce process and the mediation process.

Thoughtful Choices

The divorce mediation process offers an opportunity for choices to be made freely, and this includes what resources are used to help create mutually acceptable plans. When it comes to thinking about the use of attorneys in the divorce mediation process, the answer is not as simple as “Yes” or “No”. The more pertinent question may be “Why?”