The Influence of Attorneys in Divorce Mediation and Collaborative Practice

During both the Mediation and Collaborative Practice (CP) process, couples seeking a divorce often rely on other valuable resources in addition to their primary contact. Generally these professionals fall into three categories: legal, mental health, and financial.

They are used formally as an integral part of the CP process, but are often used informally in Mediation to enhance the efforts of the divorce Mediator.

In this particular article, we will be focusing on the legal component. The mental health and financial aspects will be looked at in more depth in future posts.

Not All Divorce Mediators Are Created Equal

It is important to understand that in any divorce situation, as well as in post-divorce circumstances such as modifications or custody issues, the parties must go to Court to have a judge review and accept any agreements that have been reached between themselves. Since this is a legal procedure, it is beneficial to have attorneys involved, but not required.

Even if a Mediator is trained as an attorney, s/he is required to be neutral in this particular role and thus cannot give specific advice to one spouse over the other. S/he may not convey any personal opinions on various matters, but can only inform about what the law would say in particular instances, or ask questions to put certain issues on the table. For this reason, even though it is not absolutely required to hire an attorney during divorce Mediation, it is highly recommended that each spouse does so in order to have someone specifically in his or her corner as an advocate.

While many divorce Mediators are attorneys by profession, not all are. In situations where Mediators are not attorneys, it is even more imperative for the couple to consult with an attorney to help oversee the paperwork and draft any agreements. This becomes even more critical if a couple is faced with an unusual or complicated situation, or if it becomes apparent that a power play or lack of effort to truly work together is in operation.

For example, a husband may have a pension from work that he believes he is solely entitled to, since the wife has been at home watching the children all these years. Or one spouse may have a large inheritance that was left to him or her. In actual fact, the law says that in both situations, the assets are considered marital property, with joint right to possession. An attorney could help work through such issues, asking questions such as whether these assets had been integrated into household finances or were held separately, and whether they should hold different weight in an agreement.

Cost of Using Attorneys in Divorce Mediation

When first advised to hire attorneys during Mediation, many individuals feel that this is an additional and unexpected cost they do not want to bear. What they may not understand at first is that the legal fees will generally be significantly less than they would be if a Mediator were not involved and the couple went straight to Court. The divorce Mediator does a lot of the preliminary work and, if s/he is an attorney, can draft the agreement, which is the most time-consuming document needed for Court.

Additionally, there is only one Mediator, and as such the Mediation fees are usually shared in some way by both parties. So in essence the couple is not really hiring three professionals full-time; it’s more like hiring one full-time and two half-time professionals. If all those involved (including the divorcing parties themselves) do their job properly, the entire process will be nowhere near three times as expensive. The parties can make the process more efficient (and thus reduce the attorneys’ billable time) by getting the information that is needed for negotiations and providing all relevant material as quickly as possible.

Choosing Attorneys for Divorce Mediation

It is important to look for an attorney to work with you in the Mediation process who seeks to bring a peaceful and fair resolution to the overall situation rather than simply pulling only for his or her client’s interests. It is to be expected that attorneys will often give conflicting advice to their respective clients, but at that point the Mediator can step in to help talk through the situation. If an agreement cannot be reached, the attorneys themselves can join in on one of the Mediation meetings in an effort to reach common ground.

If divorcing parties do not already have attorneys and are in search of a good one, I can recommend various Mediation-friendly attorneys with whom I’ve worked in the past who are known to advocate for their client in a way that does not undermine the divorce Mediation process.

Attorneys in Collaborative Practice

By its very nature, CP includes attorneys when selecting the professionals to be involved. In these cases, it is important to choose those who are collaboratively trained and who remain active in the Massachusetts Collaborative Law Council (MCLC) and other legal organizations so they can continue to develop their collaborative skills.

In addition to choosing your attorney, you will also need to look for a good mental health professional and financial advisor. We will cover these topics in our next two posts.