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.