More Comments on Mediation

The previous post was by an experienced and patient attorney that I endorse for mediation cases, and I refer divorcing couples that I believe are suitable candidates to him. But I wanted to add a couple of things to what he said.

Remember his caveat that he does not give legal advice. A divorce mediator must refrain from doing so because that crosses the line from being impartial to the appearance of assisting one side. As a result, many people in the mediation process are left wondering what their legal rights are with respect to specific issues. They don't know what the law provides or what their position should be in the negotiation process.

For that reason, many people in the mediation process will have their own attorney, who does not participate in the mediation process, to give them advice about the various issues and what is appropriate in their given circumstances. That way they feel more confident that the position they are taking is supported by statute and case law.

Some attorneys do not like to advise clients in a mediation process, because they do not have sufficient control of the case. I suspect some also refuse because they cannot make enough money by functioning as an occasional advisor as opposed to a full-time litigator. These people, although without formal mediation training, will likely tell you they can do the same thing for you as the mediator. Don't buy it. Mediation is a different mindset and set of skills than a litigator possesses. That is why mediators have special training.

I have advised many clients who are participating in mediation. Clients pay by the hour for the time they use rather than paying a hefty retainer. I believe it gives the client confidence in mediation, and perhaps provides the client with additional ideas for settlement. One final added benefit is that if the mediation is not successful for any reason and the divorce becomes contested, the client now has an attorney who is is "up to speed" on the issues and able to step into the case without having to spend time familiarizing himself with the issues.

Again, if you are facing divorce and contemplating hiring an attorney, it is probably worth your time to have an honest conversation with your spouse, and discuss whether mediation is right for you. I will try to get Mike to tell us a little about Collaborative Divorce next. Check back to see what he has to say about another alternative to staying out of court.