We receive this question a lot: “Do I need a lawyer if I’m mediating my divorce?” The short answer is: YES.
You need a lawyer to help you understand your legal exposure – i.e. your best and worst case scenarios for property, debt, reimbursements, child custody, financial support etc. BUT, depending on the complexity of your case, sometimes only 1-3 hours with a seasoned attorney is all you need. Other people choose to “retain” a lawyer to either (a) join their client in a mediation session(s); or (b) to coach, support and strategize their divorce throughout the entire mediation process and review/ revise final divorce forms. Still not sure? Read on.
We are always the first to recommend mediation to spouse’s that have the shared goal of uncoupling amicably (or at least are committed to working together to dissolve their marriage in a fair and cooperative way). Working with a good mediator has its perks — most notably you can cut down on attorney fees and costs, go at your own pace, keep the intimate details of your life a lot more private, and work toward an agreement that meets both of your needs (instead of relying on the court model, which is more of a zero-sum game). If you have children together, you may even be able to save or evolve your relationship such that you can transition into a new type of arrangement. As Belgian relationship therapist and author Esther Perel says, “Divorce is not the end of a family; it’s a reorganization.”
But, many people are confused when we suggest to mediating spouse’s that they each should consult with their own legal coach. It’s hard to imagine shelling out even more money for a lawyer after you’ve paid a mediator, deposit on a new place, weekly therapy etc. Just remember that the money you spend on your divorce lawyer is nothing compared to what you stand to lose if you negotiate the dissolving of a contract you know nothing about. That’s right – marriage is a contract. For some, the most complicated financial and emotional contract they’ve ever entered into. You might have already told yourself, ‘I want what’s fair. I’m not out to get her/him.” But how do you know what would be considered fair without knowing the law? And what if what you morally think is “fair” is the exact opposite of what your spouse thinks is fair. Before you can determine what’s fair and what’s possible – speak to an experienced lawyer who can help you figure this stuff out.
Mediation is an opportunity for you and your ex to create an outcome that is guided by but not bound by state law. You can decide what is best for you and your family by designing an agreement that is tailored to your lives and unique situation. A mediator doesn’t represent either of you but is invested in shaping an answer that meets your joint and individual goals. Because he or she isn’t directly looking out for your best interests, it makes sense to get someone knowledgeable to help. I’m not talking about your best friend or mom. I’m talking about someone who knows the game and can help you reach your best result — a legal coach.
The best legal coach understands the mediation process (and may even be a mediator his or herself). You don’t want someone who is all about litigation — if anything, he or she will frustrate the process and you’ll likely end up with a failed mediation and have to start over from scratch. Legal coaching is having a lawyer advise and direct you to the extent that you need. An attorney will explain the mediation process, listen to your priorities, intentions, goals, and concerns to help strategize your position for mediation (including developing creative, outside-the-box proposals), help you understand where you have leverage and exposure, and help you strategize how to respond to your spouse’s unreasonable demands and how to negotiate.
Often times legal coaches will require a retainer (a “deposit” of several thousand dollars toward your legal fees). At Levine Family Law Group, we offer mediation coaching. You can purchase time in increments as small as 1 hour. That way, you can decide how much you want to spend, knowing exactly where you are with finances while still having an experienced lawyer on demand. We usually recommend you meet between one and three times with one a legal coaches before you start mediation and then you may or may not need coaching between mediation sessions. Regardless of how many times you meet, your legal coach should always review your written settlement agreement before you sign it. Remember, your mediator is not charged with looking out for your best interests. You need to ensure that the agreement not only clearly articulates your understanding of the agreement, but it must also not have unintended consequences. For example, not specifying an end date for alimony payments could have unintended financial consequences down the road. You should make sure that the date that support will end is clearly stated in the agreement or if you and your ex are not ready to decide that now, you should at least agree in writing that you will reserve the issue for determination at a later date.