My clients always ask me, "Do we need to hire an attorney if we are working with Little Falls Mediation?" Although I am an attorney, my job when working with my clients in mediation is to be neutral at all times -- not to be an advocate for each party. I always advise my clients that it is a good idea for each of them to retain counsel so that they can ask for legal advice throughout the mediation process, as well as have an attorney review the draft Marital Settlement Agreement or Memorandum of Understanding that I have written for them. Karen Keyes is this month's guest blogger. Karen is a friend and colleague and founder of Arlington Collaborative Law. I ask her to speak to the law school class I teach each fall at GMU, Alternative Dispute Resolution, on the topic of collaborative law. I've asked her to be guest blogger this month to explain how she often works as a reviewing attorney after a mediation agreement has been drafted.
As a Family Law Attorney, I am often contacted by a potential client with the request that I review an agreement reached in Mediation. It is important that the client (and the person referring the client) understand what to expect from the Attorney under such circumstances. The parties have come a long way and have done a large chunk of the work to frame an agreement; the Attorneys then can help the clients cross the finish line!
A Mediator following sound protocol would inform the parties at the beginning of their Mediation that the Mediator does not provide legal advice and the parties should each have any agreement reviewed by their individual attorneys prior to signing a settlement. The Mediator should also inform the parties what the Mediator’s drafting policy is. The Mediator cannot provide legal advice or represent either party. The Attorneys, not the Mediator, should be responsible for the final contract. Both parties cannot be represented by the same attorney.
Furthermore, it is sound practice for the Mediator to work with the clients to summarize their financial disclosure to one another (assets, debts and income) so the consulting attorney has access to both parties’ information.
Ideally, the client has met with, and hired the Attorney, to consult with the client throughout the Mediation Process, so that by the time an agreement is reached, there are no surprises to either the client or the Attorney. The clients save funds by working together directly with the Mediator and the Attorney’s fees are lower when the Attorneys are not directly negotiating with each other on behalf of their clients.
The Mediator may prepare a Summary or Memorandum of Understanding reflecting what is agreed to (such document is not intended to be signed by the parties). If a document is signed by the parties, it may be legally binding and very difficult, if not impossible, to change unless the parties both agree.
Once the parties have a verbal agreement on the issues, and a Memorandum from the Mediator, then a determination is made regarding who will draft the settlement contract (which includes the necessary legal language and would be signed by the parties when in final form). Some Mediators will offer to draft the settlement contract; some may not. The client should inquire with the Attorney whether the Attorney has a preference regarding who drafts the contract (Mediator v. Attorney).
In any event, at the very least, each party should consult with a separate Attorney regarding the content of the settlement contract before signing the document. The role of an Attorney advising the client is to obtain the facts for a good intake (including but not limited to the disclosure summary prepared in Mediation), to inform the client regarding the applicable laws on any topic that is relevant and how those laws apply to the facts and the tentative agreement, to discuss whether there is any additional disclosure that should be obtained prior to entering into a signed settlement contract, and to be sure the client understands what is being agreed to and the impact that it could have over time.
The Attorney advises the client whether certain topics should be added to the agreement. Further, the Attorney would need to review any contract, if one has already been prepared, and to advise the client regarding any changes to the content and verbiage.
Sometimes, when a Mediator informs the parties they should each consult with an individual Attorney before signing a settlement contract, the client may not have the full understanding of the role of the Attorney. I have had clients request one hour of my time to do the job. Every case is different. Yet, unless a case is very simple and the assets or debts are minor and there are no child or spousal support issues, it is very difficult to get much accomplished in one hour. It is reasonable to expect that it may take a few hours for the consult, intake and discussion, and then more time to review the Agreement and make suggestions regarding content and verbiage.
Once a settlement contract is finalized and signed, it then becomes a binding legal contract and is likely to be incorporated into a court order (i.e. divorce, custody, support etc.) The reason to consult with an Attorney is (1) so the client understands what is being agreed to; (2) so that the document is solid, will be acceptable to the court, and durable over time; and (3) to avoid any contest over the agreement in the future. The legal consultation is not just a matter of checking in, but to assess the legal work needed that exceeds the responsibility of the Mediator.
A good Attorney who is asked for review should understand the concept of client self-determination and still be able to advise the client and provide any protections that are beyond the scope of work that the Mediator can provide.
If the client brings a signed settlement to the Attorney to use in obtaining a Divorce, the Attorney is then taking action to incorporate a settlement contract that the attorney had no responsibility for prior to its execution. Depending on the content, the Attorney may or may not be willing to do so.
In closing, it is best not to be “penny wise and pound foolish.” Allow time to get legal advice along the way and to have an attorney be involved in the drafting of the settlement contract before signing the document. The settlement contract is more likely to meet the needs of the client and avoid unnecessary costs that could arise later due to lack of clarity, interpretation and/or enforcement at a later date. Once the agreement is complete, the client should be able to have confidence in the document that is signed.
9/9/2020 11:54:08 am
It's good to know that a mediator doesn't give any legal advice. My friend is divorcing his abusive wife and needs help. I'll tell him to get an attorney for the legal issues but find a mediator for everything else.
12/7/2020 06:53:01 am
It was interesting when you talked about how ODR is a good option for those who need to resolve an issue of a confidential nature.
4/30/2022 01:59:58 pm
The Mediator should also inform the parties what the Mediator’s drafting policy is. The Mediator cannot provide legal advice or represent either party. Thank you for sharing your great post!
4/30/2022 02:18:16 pm
The Mediator cannot provide legal advice or represent either party. The Attorneys, I’m so thankful for your helpful post!
1/10/2023 12:41:21 pm
I thought it was interesting when you explained that it is a good idea to get some legal advice from a lawyer when you are dealing with divorce and mediation. A friend of mine is going to be filing for divorce from his wife, and he wants to get full custody of his kids. It seems like he would need to work with a lawyer since he is trying to get full legal custody.
It's interesting to know that the lawyers would be the ones responsible for the contract and finalizing it. I guess this applies when you need to face legal disputes as well, since there has to be a resolution that has to be signed between parties. A civil litigation attorney would probably be the best option for that kind of proceeding to ensure that they actually know what has to be included in the document.
1/20/2023 10:39:03 pm
Thanks for pointing out that each case is different, but there might be those that are simple to navigate. In my opinion, it doesn't matter how complex or simple it might be, so having a family lawyer is still a good idea. With their help, you can have the assurance of getting the best outcome possible that will benefit youm as a parent or a spouse.
5/17/2023 11:51:04 pm
While working with a mediator can be beneficial in reaching a resolution, it is still advisable to hire an attorney to protect your interests. A mediator's role is to facilitate communication and help parties find common ground, but they cannot provide legal advice or draft legally binding agreements. By consulting with individual attorneys, you can receive legal guidance throughout the mediation process and ensure that any agreement reached is fair and legally sound. Attorneys play a crucial role in reviewing the final settlement contract and ensuring your rights are protected.
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Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.