Are You In Divorce Mediation? Read Before You Schedule a Consultation with an Attorney

Are you considering using a private attorney as part of the divorce mediation process? 

If you are in divorce mediation, it can actually be very helpful to get the perspective of a private attorney who litigates divorces every day. This is especially true if your divorce is high conflict in nature.  I believe this because I used to represent spouses in court-contested divorces, so I understand the mindset of litigation.  

This is also why my firm makes a conscious effort to educate attorneys and build a network of trusted attorneys as partners in the mediation process.

The Role of the Divorce Mediator is Limited

Having this experience from "both sides" of the divorce process (mediation and litigation) allows me to provide my clients with a basic understanding of their rights and obligations in a divorce. It also gives them a general sense of what they can reasonably expect if they went to court.  

My role as a neutral mediator is limited, however. I am not able to provide spouses with that extra bit of legal protection or support they may need in order to feel more confident about their settlement in mediation. 

Using Attorneys in Divorce Mediation: When it Works

In fact, this recently happened with a client of mine who was in the process of negotiating final terms with her husband. The matter was somewhat contentious.  The wife was feeling a bit insecure about her lack of sophistication with the marital finances and intricacies of her husband's business. Because of that, she felt disadvantaged in the settlement. This resulted in a stalemate in the process.  

After recognizing this, I realized that it was preventing the wife from moving forward. I then suggested that she consult with (not retain) a private divorce attorney for some independent advice and perspective on her settlement.  She was immediately puzzled by my suggestion.

In fact, it sounded paradoxical to her.  

Why would I suggest that a divorcing client, who purposely chose mediation to avoid the court system, should ever consult with a private divorce attorney?

However, in her case, it was exactly "what the doctor ordered" to help the clients to successfully finish in mediation.  

The attorney reviewed the draft of the marital settlement agreement and reassured the wife she was on the right track.  He told her it was in the range of what she could expect if they ended up in court. This gave the wife renewed confidence in her decision to mediate. 

The attorney reviewed her marital settlement agreement draft and confirmed it was in the range of what
she could expect if they ended up in court. 

You can now understand how helpful private divorce attorneys can be to the divorce mediation process. But how do you decide that consulting with an attorney is a good idea in your case? Which one should you consult with? And who will be supportive of your end goals and objectives in divorce mediation, rather than sabotage them - either wittingly or unwittingly? 

Here are 4 main things to consider when scheduling a divorce consultation with a private attorney during the mediation process:

1) How familiar is the attorney with the divorce mediation process? Do they understand their role and can be objective? 

Believe it or not, there are still a good number of divorce attorneys who are not familiar with the mediation process.  They don't understand how it works or what spouses can achieve with it.

This lack of familiarity can sometimes leave the attorney somewhat dubious about the efficacy of the process. This is especially true when they are so entrenched in the court-contested divorce process on a daily basis and are usually involved in highly contentious matters.

It can sometimes be hard for the attorney to believe how any spouse can mediate a divorce, given their day-to-day experiences with their own clients.

Therefore, you should schedule a divorce consultation with an attorney who may not feel so jaded about the divorce process (yes, they do exist out there).  This is critical.

2) What is the attorney's mindset about the practice of divorce?  

Not all divorce attorneys are created equal; there are some that are extremely zealous advocates for their clients.  They relish the court process, getting caught up in the adversarial battle and the challenge of gaining as much as they can for their client.

They can often be very effective in this role. Then there are others who are more interested in a collaborative solution first, if possible, designed to save their clients much time and legal fees while sparing their children who can often suffer emotionally through a long, tedious battle in divorce court.

We often refer to these divorce attorneys as "mediation-friendly" attorneys. You will definitely want to schedule a divorce consultation with a mediation-friendly attorney.  

3)  What is the attorney’s credentials and level of experience in divorce cases? 

As always, you will want to assess the attorney's credentials and level of experience. Here, you are not assessing the attorney's ability to effectively represent you in court.

Rather, can the attorney be objective in providing you with greater perspective on where you stand with respect to your rights and entitlements with the type of settlement you are contemplating? Can the attorney also provide their objective opinion on whether the settlement generally sounds fair and reasonable? Remember, the mediator is not ethically able to do this. 

4) Is the attorney sincerely motivated in helping you and your family get through your divorce in the most healthy and efficient a manner as possible? Or are they more interested in gaining a new client?  

Here's the best way to assess this. First, let the attorney know what you and your spouse would generally like to achieve in your mediated settlement. Be clear that you thoroughly discussed it together in mediation, considered all angles and pitfalls with your spouse and the mediator, and that everyone's needs and interests were considered and addressed during the discussions.  

Second, how does the attorney react when you tell them this? This is where you will have to follow your gut instinct with the attorney's response.  Generally, if the attorney understands fully what you want for your settlement and honors your wishes and intentions (regardless of what the applicable law may prescribe), then you are probably consulting with the right attorney. 

When can a consultation with a private divorce attorney go horribly wrong? 

As an actual example of this, I recently had a client take their marital settlement agreement draft they obtained in mediation to a private divorce attorney for further review. During the attorney's review of the draft, she advised the client (husband) that he was likely waiving rights he had to claim alimony. As a result, he should not agree to split his retirement fund with his wife.

This advice came after the husband clearly told the attorney that it was his intention to split his retirement - that he did not need alimony after thoroughly discussing and analyzing his finances in mediation.  

Regardless, the attorney adamantly disagreed and proceeded with her suggested revisions of the agreement in writing.

As part of the revisions, the attorney moved the husband's retirement back into his column of assets, unbeknownst to him! When the husband shared the revisions with his wife, she noticed all of her husband's retirement in his column. She then flipped and accused her husband of acting in bad faith in attempting to surreptitiously change the settlement they had originally agreed to.  

This served to set back the mediation. More time was needed to repair the trust that had been broken in his wife's mind. We eventually finished successfully, but the entire process had almost been derailed.  

Here, the attorney misunderstood her function and role. The husband was not looking for an advocate. Rather, he just needed an independent review of the language of the draft he presented her with which he already believed to be a fair settlement.  

When instances like this happen, they can serve as a hindrance to the mediation process rather than as a help.  That's why it is so critical to be surrounded by the right legal support, when that additional support is necessary to successfully complete your mediated divorce.