The role of consulting attorneys: Nine ways they can support the mediation process, and one way they can inadvertently undermine it.
Most mediators strongly recommend that both parties obtain independent counsel to advise them prior to executing any agreement. Consulting attorneys perform a critical function and can add real value to the mediation process. But when these attorneys misunderstand their role, they can significantly undermine the process and do unintended damage.
What should a consulting attorney do?
- Explain the agreement and all its terms so that the client understands it.
- Ensure that the agreement says what the client thinks it says and reflects what was agreed in mediation.
- Educate the client about the applicable law and describe what the client might reasonably expect if the matter had been decided by a Court.
- Answer all questions the client may have – especially the ones he or she may have been uncomfortable asking in front of a spouse or mediator.
- Provide the client with the comfort of having someone knowledgeable “on their side” as they make important decisions.
- Endeavor first to understand and respect the mediated agreement reached between the parties before suggesting changes.
- Suggest changes to the language of the agreement only where such changes are not inconsistent with the intent of the parties.
- Act as a “reality check” to ensure that the client understands how the implementation of the agreement will affect the client’s future.
- Alert the client to any provision which seems irregular, unfair or well outside the norm so that the client can make an informed decision about how to proceed, which may involve returning to mediation to renegotiate troublesome provisions.
What should a consulting attorney not do?
- Take it upon themselves to try to “improve the deal” reached by the client in mediation.
Attorneys are advocates and negotiators. It can be tempting when they review a deal to try to get just a little more for their client. This instinct is understandable, but it is inconsistent with the goals of mediation and can even threaten the agreement. Clients chose the mediation process in part because they wanted to decide the terms of their own resolution. By instigating renegotiation (often between counsel), attorneys unwittingly remove the agency of the parties and rob them of self-determination. Additionally, parties often prefer mediation because they value interests and relationships more than just the bottom line. How they conduct themselves and treat each other during the mediation can provide some of its most transformational and longest lasting benefits. Attorneys can unknowingly undermine that good work by trying to change terms in their client’s favor.
An effective consulting attorney understands that he or she often best serves the client by supporting the hard work the client has done in mediation. An attorney who substitutes his or her own judgment for the client’s, or without invitation seeks to “improve” a deal, can unintentionally undercut the efforts of the parties and the mediator.
When choosing a consulting attorney, I always advise clients to ask the attorney how they view their role in the process. Because their answer can make or break the mediation.
Parties involved in mediation are usually encouraged to retain independent counsel prior to signing a final agreement. Alternately known as review or consulting attorneys, these professionals can add important value, support and peace of mind for clients who are mediating their disputes. But clients often wonder who they should retain and when, and the answer to both of those questions may matter more than clients realize.
Who to hire?
Although review attorneys can provide a broad range of services, the role of a review attorney can be quite limited if the client wishes. For that reason, it can be tempting to underestimate the importance of who to choose. Some clients assume they can just rely on their brother-in-law who is a real estate lawyer or call a barracuda litigator their friend used. But even where the job appears small, choosing the wrong review attorney can create big problems. Here’s a list of what to look for, and what to avoid, when choosing a review attorney.
- Subject matter knowledge.
If you are mediating a divorce, for example, it is critically important that your consulting attorney understands divorce law. They will be helping you understand and evaluate the agreement in light of the applicable law. The advice they give can only be as good as the depth of their own knowledge and understanding. And while most attorneys can read a contract, familiarity with the specific provisions, court requirements, and underlying law makes for an infinitely more valuable review.
- Respect for the mediation process.
Mediation is based on the idea that the parties themselves are in the best position to make important decisions about their futures. Mediated agreements often consider more than just the bottom line in determining what feels fair and right to the parties involved. Attorneys who are unfamiliar with mediation may overlook these important aspects and take it upon themselves to try to force a “better deal” than the one their client negotiated. Their intentions may be good, but they can inadvertently undo all the hard work their clients and the mediator put in. Their misguided actions can raise the level of conflict between the parties and move them farther from agreement.
- An understanding of the limited scope of representation.
Experienced consulting attorneys know they are being retained to provide reliable advice and promote understanding within the context of a mediation. They are not generally being retained to renegotiate a deal from the ground up and should not expect that they will be taking the matter into litigation. An attorney who seeks an enormous retainer deposit or suggests the use of aggressive tactics inconsistent with mediation should be a red flag.
When to hire?
The short answer is the sooner the better. If a client knows they will be using an attorney at some point to review any agreement they reach, it stands to reason that they will be best served by establishing a relationship with that attorney sooner rather than later. That way they can ask questions and receive the advice they need in real time rather than attempt to navigate the mediation process unsupported. And while some clients may assume that bringing the review attorney in at the last moment solely to review the agreement will save costs, that may not be the result. If the attorney identifies a substantial problem with the agreement, wouldn’t it be more efficient to do so earlier in the process than after the agreement has been drafted?
The role a consulting attorney plays is largely dictated by how the client wishes to use them. But retaining the right attorney early in the process offers the client the option to receive important advice and support whenever the need should arise. And that’s exactly what clients deserve.
The consulting attorney in mediation – is it worth it?
Mediators almost universally recommend that all parties retain independent review attorneys. But clients often hesitate, wondering if it’s really necessary or just an added expense. Clients understandably worry that involving review counsel will add cost, invite complications, or even jeopardize the proceedings.
Experienced consulting attorneys understand that their engagement is a limited one. The scope of their services is generally defined by the needs of the client. And they strive to provide considerable value for the modest fees they charge. When they identify and raise important issues, the goal is not to complicate but to clarify. And rather than endanger the success of the mediation, review attorneys offer critical support to the process to ensure that clients get exactly what they bargained for.
Why hire a consulting attorney?
- Crucial legal advice.
Mediators provide the parties with lots of important legal information. As neutrals,however, they are forbidden from providing either party with legal advice. But reliable legal advice is exactly what individuals going through a divorce or other conflict often need. And they certainly deserve to have it. Receiving informed counsel directly from a qualified attorney with undivided loyalties provides clients with the specific answers they seek and the confidence they may need to make important and often difficult decisions.
- Protection from misunderstanding.
Separation agreements are long (often 50 pages or more) and dense with legal concepts unfamiliar to most laypeople. Mediation clients are directed to read them carefully before they sign, but given the complexity of the material and the often strong emotions at play, it is easy to imagine even the most diligent client missing or misunderstanding something important. A review attorney is familiar with the type of language in the document and has no emotional distractions to manage. He or she can spot irregularities, explain clauses, and ensure that the agreement says what the client thinks it says.
- Durability of the agreement.
Parties reasonably expect that the agreement they sign will be enforceable and withstand any future attempt to invalidate it. But the absence of legal representation can leave an agreement more vulnerable to challenge. An unrepresented party may claim that they didn’t understand what they were signing or that they didn’t understand the applicable law. The use of consulting attorneys can be a simple way to ensure that the agreement is built to last.
Clients choose mediation, in part, to save on process fees. It can be tempting to view consulting attorneys as nonessential expenses, but doing so ignores the importance of the service they provide. Individual counsel offer clients security and confidence, limit the possibility of mistakes or misunderstandings and make for stronger, more durable agreements. Most clients find the value offered by consulting attorneys to be indispensable.
In my years of working with divorcing spouses, I have come to understand that divorce is an act of hope. Although it can be tempting to view the end of a marriage cynically, the decision to divorce is ultimately about forging a new beginning. The choice to start one’s life anew implies a hopeful belief that life ahead can offer more satisfaction. It is an act of courage and aspiration worthy of admiration and support.
Of course, there are other emotions at play as well. Divorcing spouses may wrestle with fear, anger, anxiety and disappointment – just to name a few. And unless that feeling of hope is nurtured it can be easily subsumed by negative impulses. Bereft of hope and awash in skepticism, couples face a much more challenging road ahead. But strengthened by the hope of a brighter future, divorcing spouses are better equipped to make thoughtful decisions more likely to ensure their future happiness. And they may even get to look back on their divorce with the comforting knowledge that they behaved in ways that were consistent with their values.
Nobody believes divorce will be easy. Radical change never is. So we may as well embrace that the willingness to undertake that challenge reflects an underlying optimism. The practice of Collaborative Divorce not only honors that sense of hope, it seeks to employ its power. Hope serves to smooth the process and to direct the participants toward meaningful and lasting success.
One of the basic tenets of Collaborative Divorce is that we seek to attack the problems, not each other. Rather than forcing spouses and their attorneys to labor at cross purposes (with all the unpleasantness and inefficiency that implies – picture two people pushing a rock from opposite directions), the Collaborative model helps the parties and the professionals to work creatively to solve their problems together. By cooperatively pushing the “rock” in the same direction, the work is less frustrating and more productive.
Just as importantly, the experience of working together collaboratively begins to form a foundation for how the couple sees the possibility of their relationship going forward. Rather than enduring an experience of having to struggle against each other every step of the way, parties using the Collaborative model often get to experience the encouraging satisfaction of learning to work together toward a common purpose. Even relatively small successes achieved through collaboration can nurture hope in ways that enduring antagonistic struggles can thwart. Consider the enormity of that difference when viewed as the first step in the journey into a new stage of relationship with your spouse.
Within every divorcing spouse lives a seed of hope. If left untended, that seed can easily be trampled beneath fear and conflict. But if it is nurtured with the help of a well-trained team of collaborative professionals, it can blossom into a healthy and vibrant new beginning. Just think of the possibilities.