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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.