The Role of Lawyers in Divorce Mediation

There are 2 types of mediation session: those that involve lawyers and those that don’t.

In the first type of mediation session, one or both parties are represented by attorneys. During these mediations the attorneys are present to advise their clients throughout the day. The attorneys are active participants in the mediation process and help the clients to formulate proposals and counterproposals. Sometimes the lawyers will speak with the clients while the mediator is present, and sometimes the lawyers and the clients will meet alone.

In the second type of mediation, only the mediator and the clients are present. While the parties may be represented by counsel outside of the mediation, during this type of session everyone has agreed that the parties will mediate without lawyers present. This type of mediation is common in court-ordered custody mediations, but also happens frequently in the private mediation setting. During this type of session we may meet as a group – in other words, the mediator may meet jointly with the parties – or we may break into private sessions where the mediator meets separately with one party at a time. Whether we meet as a group or in private sessions will depend on the preference of the parties, the goals of the mediation and the parties’ ability to communicate directly with each other.

It can be very helpful for people to have their lawyers present during the mediation. While I am a licensed attorney and Board Certified Specialist in family law, when acting as a mediator I am prohibited from giving either party legal advice. In addition, the lawyers are there to look out for their clients’ best interests and to advise them accordingly. As the mediator, I must remain neutral. My concern is whether the parties are able to settle their dispute, not whether that settlement is fair to either party. Having the lawyers present also helps to neutralize situations in which there is an imbalance of power between the parties for reasons such as one party controlling the finances or access to information. The lawyer can help ensure that the party has all the information he or she needs to make an educated decision.

There are also advantages to mediation sessions in which the parties agree to mediate without their lawyers present. For one thing, these sessions are less expensive for the parties because they are only paying for the mediator’s services and not their attorney’s hourly rates. In addition, the parties are free to communicate with each other without having to filter the information through their lawyers. These sessions also allow the parties to resolve their dispute in a way that is satisfactory to them, without their lawyers injecting what they consider to be “fair.” Even the most well-intentioned lawyers sometimes have difficulty separating their feelings of fairness from the needs and desires of their clients.

I am happy to conduct mediation sessions either with or without the lawyers present. When choosing which type of mediation is best for you, you should consider the factors we’ve discussed and you should consider your personal comfort level. If you are the type of person who values the input of your attorney and wants to make sure the settlement you reach is within an expected legal range, then you should have your attorney present. On the other hand, if you’re more of the do-it-yourself type and want to keep legal fees to a minimum, a mediation session without lawyers may be the best route. Either way, I will do my best to ensure that both parties end the session with an agreement that is satisfactory.

- Nick Cushing

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