Written by attorney Karen Drury Russell

The Role of a Consulting Attorney in Mediation

Many people who choose to mediate their divorces do so because they do not want to “get lawyers involved". They are afraid the lawyers will turn things into an adversarial nightmare. Therefore, it tends to make them nervous when I mention consulting attorneys in mediation. Let’s look at some of the things they do to enhance the process:

1.Give individual legal advice and counsel

As the mediator, I am neutral and must remain so throughout the process. While I am qualified and capable of giving individual legal advice, I do not do so in mediation in order to maintain my neutrality. Some mediators require the parties to have consulting attorneys, others, like myself, do not. I give the parties lots of general legal overview information designed to help them in their decision-making process but they need to see consulting counsel if they have specific questions.

2.Support you in the mediation process

Sometimes you just need someone to talk to and bat ideas around with in between mediation sessions. Your consulting attorney is supposed to be there to support you in the mediation process by giving you ideas and suggestions for how you might approach the discussion around certain issues.

3.Review your agreements and explain the ramifications of the agreements to you

The beauty of mediation is that you are in charge of the decisions you make and you can think “outside the box" to find solutions for your case with the help of your mediator helps who then writes up the final agreement for you (known as a Marital Settlement Agreement (MSA).

Your consulting attorney is there to review that agreement with you BEFORE you sign it. They will carefully explain the ramifications of the agreement so you are informed of your rights and obligations and how the agreement affects them. It is NOT their job to talk you out of the agreement or give you permission to sign it. They will give you feedback on the agreement and it will be up to you to decide which of their comment you want to incorporate into your MSA and which you want to leave out.

4.Give “reality checks" as needed

The information discussed in a mediation session can get confusing and it helps to have someone to give you a “reality check" about whether your expectations are realistic. Sometimes, I send folks to consulting counsel when there is information they need that I cannot provide to them without breaking my neutrality.

5.Provide another set of eyes on the final agreement and help with language.

Marital Settlement Agreements are long and complex documents that take time to write. As a mediator, I like to have consulting counsel review the MSA as it helps me. They sometimes find things I missed or, I ask them to help me with language to clarify the intent of the parties.

The role of the consulting attorney mediation is a positive one. They are members of YOUR team to help you as you go through the process. Most mediators, me included, have a list of people they recommend as consulting attorneys so be sure to ask. My list for example, consists of other mediators and collaborative attorneys who know me and how I work. Many do not litigate at all.

In closing, keep in mind that in mediation, the lawyers are there to help and support you, not turn the case into an adversarial battle. They have a very positive role to play and I highly respect them for it.

Karen Drury Russell


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