A consulting attorney is not required for divorce mediation, but hiring one is still highly recommended. They can provide a wide variety of services that will make mediation easier and faster. A good attorney can give background regarding divorce mediation and answer a party’s questions. They can also provide guidance on the issues involved, and even provide emotional support needed by clients. For purposes of mediation, a consulting attorney is also referred to as “independent legal counsel.”
Before deciding to proceed with mediation, it’s best to sit down with a lawyer first. A party who wants to go through mediation should have clear goals on what he or she wants to achieve. An attorney can advise the party if the goals will indeed be achieved by mediation. Some common goals that parties want to meet through mediation are:
- Reduce legal fees
- Save time
- Preserve the relationship with the other spouse
- Maintain privacy
- Retain control in making decisions
- Avoid a long legal battle
A consulting attorney not only provides an assessment of the goals a party wants to achieve but also provides an assessment of the client’s capacity for mediation. Not everyone may be suitable for mediation. Factors such as a party’s personality and working relationship with the other spouse affect the attorney’s advice on whether or not a party should proceed to mediation.
Roles and Duties of a Consulting Attorney
A consulting attorney hired for mediation performs different roles and duties from that of a divorce attorney hired to represent a client in court proceedings. Parties may have the misconception that the attorney will still argue on their behalf during mediation proceedings. It’s important to note that a consulting attorney does not directly participate in the negotiation process and only has limited contact with the mediation.
There are still a wide variety of roles that an attorney can perform for a client. Some of these are:
- Selecting a mediator
- Formulation of ground rules for mediation
- Providing a client with emotional support
- Drafting and formulating interim agreements
- Gathering the necessary information and documents
- Hiring experts
- Explaining the applicable law
- Assessing the progress of the negotiation
- Reviewing a draft agreement
The roles and duties of an attorney may not necessarily be reduced in writing. The important thing is to have an overview of what the roles and duties entail. This is due to the fact that it would be impractical to reduce every potential duty in writing as the role of an attorney necessarily evolves with the process of mediation.
It’s also helpful to discuss at this point the fees for the attorney’s services. These may be reduced in writing to preempt any disagreement later on.
Selection of a Mediator
Selecting a mediator is a crucial task that an attorney can help with. Most people are unfamiliar with mediators and where to start looking for them. An attorney will be able to give recommendations on mediators they’ve worked within the past. The decision on the selection of a mediator still remains with the party, but an attorney’s advice is a helpful starting place.
Lawyers also provide a measure of comfort and support to their clients, especially those who are most vulnerable. This helps builds trust and confidence in the lawyer and fosters a better working relationship between lawyer and client. Don’t be afraid to tell your lawyer your fears and apprehension regarding the case; most of them will be able to advise on the matter.
Information Gathering and Applicable Laws
In mediation, it is the parties themselves who are primarily responsible for gathering the necessary information and documents. A consulting attorney can assist a party by providing a list of all the necessary information and documents as well as detailing the process of gathering them. A consulting attorney also gives the party information and background regarding applicable laws and how it applies to the case at hand.