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DIVORCE MEDIATION – can I have my own attorney?

September 18, 2019

The title of the children’s book It Takes a Village could apply just as easily to divorce. Psychologists, social workers and financial advisors all have perspectives that may be useful to divorcing spouses, and many practitioners in these disciplines have successful businesses as divorce coaches. However, one profession that’s often overlooked when choosing a coach is lawyers.

Most people think of lawyers as adversarial only. If a divorce is acrimonious, it’s common to want the “meanest matrimonial lawyer, one who eats raw meat for breakfast.” This is a stereotype, one that’s largely outdated and often ineffective. Increasingly, divorcing spouses are looking for better process options to divorce, including mediation.  Can a spouse in mediation also have their own attorney?  Does the attorney participate in the mediation?  How would this work?

We are often asked to coach parties through mediation which they’ve chosen as their divorce process.   This may help a spouse to feel more “protected”, and provides a spouse with their own attorney to provide legal advice and guide them through each step of the mediation process.  For example, the couple has reached agreement on a parenting plan, division of their household goods and who will pay for medical insurance coverage, but they’re stuck on division of a pension or a 401k. They’re not stuck because they disagree; they’re stuck because they don’t know if what they’re asking for is reasonable. They may experience diminished trust in each other and may be concerned they’ll be taken advantage of. Mediation has enabled them to agree on many things but progress has slowed because one or both parties, feeling uncertain, find themselves hesitant to discuss a few remaining issues. A lawyer as coach can jar these situations loose by providing knowledge and perspective.

To optimize a lawyer as your divorce coach, it works best to have the lawyer on board during all or most of the mediation. This does not mean your lawyer/coach needs to accompany you to every mediation session, although s/he can. Most times, lawyer/coaches are consulted between mediation sessions if a divorcing spouse has a legal question. Good mediators encourage this (though many mediators are lawyers, they would be ethically compromised by giving legal advice to either party in mediation). Therefore, if a legal question arises in the course of mediation, one or both parties may wish to check with their respective lawyer/coach between sessions. If you do not engage a lawyer/coach for the duration of the mediation, you can bring one into the process at any time.

One or both parties in divorce mediation may be coached by a lawyer. Lawyers who excel in this role are collaborative without being overly concessive, and have a grasp of the overall settlement picture. Experience in the role also counts for a lot. Lawyers whose experience is exclusively as an adversary or litigator may not adjust readily to representing or coaching clients who choose mediation for their divorce. A lawyer/coach must recognize that a client may be well satisfied without cleaning the spouse’s clock, so to speak; divorce settlement need not be punishing to work well.

We have coached a number of parties who’ve chosen mediation. Not only has it been helpful in expediting divorce, it’s also more economical and less adversarial. The experience has been not only effective but satisfying for lawyer/coach and client/coachee.


This post was originally published on 1/5/18.

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