Mediation and Legal Advice
In these tough economic times, many prospective clients are turning to mediation to negotiate their divorce settlements because of the potential cost savings. In mediation, parties meet with a private and impartial mediator to work out the details of their divorce settlement.
A lot of folks are under the mistaken impression that a mediator who is also a family lawyer like me, will advise and make recommendations to the parties how they should settle their case. In addition, it may be assumed that I write their Financial Settlement Agreement and handle the divorce case as well.
Some prospective clients think mediation is a soup-to-nuts process that ends with a Final Decree of Divorce and Financial Clean Break Order. This is incorrect and, in fact, I am writing this post to try and help clients understand the process more clearly.
There are several BIG reasons why a party in mediation, as a minimum, should have a meet with a family lawyer before starting mediation.
First Big Reason:
The role of the mediator and the Lawyer are not the same.
Mediators work with couples, and not with each individual spouse. Mediators do not give legal advice to each party separately. Mediators do not advocate for either party. The whole point of mediation is that the mediator stays neutral, calm and goal oriented.
A Lawyer who is focused on you as a client is going to advise you about the best choices you should make in order to resolve your case. Your own lawyer will tell you the facts and realities of your case and will give you the right parameters for settling your case. For example, your own lawyer will tell you what your rights are and what your responsibilities are as a party.
In addition, each party needs a reality check in regards to maintenance, child support and equitable distribution. A mediator will NOT provide a client with this valuable information because it’s not their job and they are struggling to stay neutral. information will be given but NOT advice and there is a big difference.
Second Big Reason:
Spouses who are negotiating for themselves in mediation need to know before they start the process their rights and responsibilities both individually and as a parting couple. When clients come to me to mediate, I always ask them if they have had the benefit of legal advice from a family lawyer. If not, I recommend they do so if not now then certainly throughout the process.
Why? Quite frankly, because it makes my job easier. When couples come to me to mediate they are often at opposite ends of the spectrum as to what they should agree to. If neither of them has had the benefit of legal advice, they cannot come to the table to negotiate well prepared. The benefit of counsel before you mediate is that you will be negotiating from a position of knowledge. Both parties will come to the table prepared, knowledgeable and closer to an agreement than their uneducated counterparts. This allows the mediator to build a consensus between the parties in less time and with less arguments because the parties know the parameters for a reasonable settlement from their respective advisors.
Third Big Reason:
Once the process of mediation is completed, the mediator prepares a document known as a Memorandum of Understanding. The parties do not sign this memorandum but wait until one party’s lawyer converts the Memorandum of Understanding into a formal Financial Settlement Agreement/ order which the court will accept as a final Agreement. Many clients have a difficult time understanding that the mediator does not write their final agreement. The reason Mediators do not do this is because the mediator wants to remain neutral. The Memorandum only expresses the facts of the party’s agreement, but does not include standard boilerplate language that a completed Financial Settlement Agreement includes. It is so important that once the lawyer for one party writes the final Financial Settlement Agreement, that each spouse has it reviewed carefully. As I said, each client needs to know exactly what the Agreement says and that the Agreement says what the client wants it to say.
Fourth Big Reason:
Once the final Financial Settlement Agreement is reached , written and signed by the parties, someone has to take the final step of actually filing for divorce if they have not done so already. Most couples have an agenda between themselves as to which of them will be the “Petitioner”. Sometimes one spouse or the other is more “at fault” and that makes them the “Respondent” Sometimes the parties don’t really care about which spouse files for divorce and either lawyer can make the application.
Ok, let’s review.
The parties need to have legal advice so they can begin the process of mediation intelligently. The parties need to have legal advice so they know that the final agreement they enter into is correct and valid. Finally, the parties need a lawyer to file for a Divorce.
On a Final note Legal Aid is still available for those who financially qualify. If you are eligible for legal aid then this can entitle you to free legal advice from a lawyer through the ” Help with Mediation scheme”. In addition to this if only one party is eligible for legal aid then the paying party will be entitled to an initial MIAMS meet free of charge together with a free first session of mediation. Contact our mediation team for more information.