Mediation for legal separation, parenting plan schedules, asset division, spousal and child support, and similar domestic relations issues is practiced mostly under local protocols and customs rather than strict statutory rules and regulations.
As a result, there is great variance among mediators about exactly how the process is applied to different couples experiencing conflict in their relationships. One area where family law mediators have differences in approach is whether separate lawyers for each party must be hired to review and give legal advice concerning any settlement document before it is executed. This is surely a topic where we can “agree to disagree”—but clients should learn about a mediator’s philosophy and style before selecting a particular professional to work with them to negotiate a mutual outcome.
On the one hand, a family law agreement—whether it involves monetary decisions, parenting priorities, or even post-divorce modification—will probably be the single most important document ever entered into by marital partners. Separation agreements and similar binding instruments address behavior and decisions that can have implications for a lifetime. To say that separation and divorce papers are filled with “the law” would be an understatement.
Mediators are vital facilitators when it comes to having conversations about legal information. However, mediators do not—even when they also happen to be lawyers—render legal advice. A good example of this distinction concerns child support. In all 50 states there are laws, mostly known as “guidelines”, that provide formulas for parental support of minor children based on incomes. Such laws are readily available for anyone to retrieve and learn about on statewide legislative and judicial websites. Having a good grasp of what those laws provide with assistance from a competent mediator falls under the realm of legal information. But… seeking guidance to decide whether one (or both) parents should actually follow those laws or instead deviate from the legal model under their particular family circumstances and/or assessing whether a settled result might be better or worse than could be expected in the courtroom constitutes legal advice. So, it seems natural that in many instances mediation participants will want to engage the services of attorneys to render legal opinions about the proposed terms of self-determined provisions in a family law agreement.
Conversely, among the principal distinctions of mediation are that parties arrive at their own results with the assistance of their mediator who helps find common ground in needs and interests of the couple. Oftentimes, spouses specifically “opt-out” of the law in various areas and instead agree to terms that are self-created notwithstanding whatever judges might conceivably do in their case. Certainly no one knows better about the family dynamics and finances than the marital partners themselves. And mediators are mindful that among the priorities of choosing this dispute resolution process, parties want private, efficient, and economical results. The entrance of lawyers into the process will of course create additional costs and sometimes leads to positional advocacy and unintended adversarial intervention.
There is no “cookie cutter” answer to whether clients should retain their own independent lawyers during mediation. Having a candid conversation with the mediator about his or her viewpoints about this subject is an important assessment when selecting the appropriate professional to mediate a resolution of family conflicts.