Lawyers and Divorce Mediation

It's not necessary to have a lawyer to use divorce mediation, but here's how consulting a legal advisor can help you.

A legal advisor is a special type of lawyer -- one who is willing to consult with you as an integral part of the mediation process. While business lawyers have long served the role of consultant to their clients on narrow legal issues within the larger scope of business, divorce lawyers have traditionally been accustomed to taking over and handling an entire divorce case. For this reason, many lawyers who have special expertise in the divorce area are unwilling to stay on the sidelines as a consultant on an as-needed basis. This attitude is changing, however, as mediation is used by more and more divorcing couples and the need for consulting lawyers increases. In addition, many divorce lawyers are becoming mediators as the demand for divorce mediation grows, and these lawyers usually are happy to work as consulting lawyers on cases they aren't mediating.

Why Consult a Legal Advisor

At some point before you firm up any settlement agreement in mediation, you may want to consult with someone about your legal rights. While you can learn a lot about your rights from doing your own legal research, consulting with an actual legal advisor can help you get answers that are more specifically tailored to your case.

Your legal advisor can also help predict the range of possible legal outcomes if you were to go to court -- and the cost of paying a lawyer to fight for them. Knowing the possible outcomes can be integral to a successful negotiation. A good legal advisor can coach you in negotiating techniques and can help you think of creative solutions to propose in the mediation that are better than (or at least as good as) the court outcomes.

Your legal advisor can also act as a law coach on an as-needed basis during the mediation. Even before the mediation, your legal advisor/law coach can help you evaluate the option of mediation, select a mediator and persuade your spouse to mediate. Between sessions, you can consult with your law coach to stay focused, clarify questions, and prepare for negotiations.

Your legal advisor can review any written agreement prepared by the mediator to make sure that the written document says what you want it to say and will be legally binding once signed.

Finally, your legal advisor can interface with the court, helping you prepare the papers needed for an uncontested divorce once your settlement agreement is signed, if your mediator will not do that for you.

When To Consult a Legal Advisor

Once you find a legal advisor who understands and supports mediation, it is a good idea to have a brief consultation early on during the mediation process. Not only will this give you important information about your legal rights, but it will also allow you to begin building a good working relationship with your legal advisor.

If you wait until you've already negotiated an agreement to consult a legal advisor, you may be in for some surprises about your legal rights that could undermine your commitment to the agreement you've just negotiated. Going back to mediation and trying to renegotiate the agreement at that point is often disastrous.

If you instead start out the process with solid legal information, you can negotiate an agreement that takes into account all your legal rights. This makes it much less likely that the mediation will fall apart at the last minute.

As your mediation progresses, you should feel free to consult with your legal advisor on an as-needed basis in between mediation sessions whenever you have questions about your legal rights or the legal process.

Qualifications of a Legal Advisor

Your legal advisor will most likely be a lawyer licensed to practice law in your state. But there are some more specific qualifications that you will want to look for.

A lawyer who advises clients going through mediation is often referred to as a consulting lawyer. Just finding someone licensed to practice law is not enough. In addition, you want a lawyer with significant experience in the area of divorce law.

In Iowa, the application of either party or the court on its own may cause the parties to be ordered to participate in mediation to attempt to resolve their differences. A court will not, however order mediation to resolve disputes if it finds a history of domestic abuse exists or the court determines that direct physical harm or significant physical or emotional harm to children or a parent is likely to result. (IA Code 598.7A)

programs You may want to consider finding a certified specialist in one of these areas. Although this sounds extravagant, many certified specialists are quite knowledgeable about mediation and are experienced as consulting lawyers. Their high hourly fee is often justified by the quality and efficiency of their advice.

Your consulting lawyer should have a good reputation for competence, honesty and respectful treatment of clients. Ask your referral sources about these qualities.

It is also critical that your consulting lawyer be experienced in and supportive of mediation. A consulting lawyer who is ignorant of or hostile to mediation can undermine everything you are trying to accomplish in mediating your divorce. For example, a lawyer who doesn't approve of mediation or one who thinks mediation is a good idea but doesn't know enough about it could easily advise you to take a position that is legally correct but extremely adversarial. What you want is advice designed to inform you of your legal rights and to help you promote a reasonable settlement.

Fees

Most divorce lawyers charge an hourly fee. Most of them also expect to be paid an initial large retainer (advance deposit) of several thousand to cover the cost of beginning a contested case. Because mediating your case hopefully will lead to an agreement for an uncontested divorce, you shouldn't have to pay a large retainer. Look for a consulting lawyer who will charge you on by the hour without demanding a big retainer. Even so, be prepared for the hourly fee to range as high as $250 to $500, especially in major metropolitan areas. When you do find a consulting lawyer who charges by the hour without requiring a retainer, it's a good idea to confirm the fee arrangement in writing.

Locating a Legal Advisor

The best way to find a good legal advisor is through referrals. Your mediator may be able to give you a list of potential consulting lawyers he or she knows. Or, if you are working with a counselor, or financial or other advisor, you may be able to obtain referrals that way. You may have come across the names of good consulting lawyers in your search for a mediator. Many lawyer-mediators offer their services as consulting lawyers too. This is also where friends, family and acquaintances can come in handy, especially if they have been through mediation themselves and understand how helpful a good consulting lawyer can be.

In addition to referrals, you might try contacting your local bar association, professional mediation association or mediation center. Finally, you can get listings of lawyers by geographical area in a reference publication called Martindale-Hubbell, a national lawyer directory available in many public libraries and law libraries, and on the Internet at http://www.martindale.com.

Interviewing and Selecting a Legal Advisor

Once you have a list of names to choose from, pick the one who seems best to contact first. Or if you can afford it, consider meeting with the top two or three candidates in order to select the one you want to work with. It may seem like a waste of money, but considering the cost of adversarial litigation, paying a few hundred dollars to find a good consulting lawyer you're comfortable with is a bargain.

Here are some questions to ask when you meet with a potential consulting lawyer.

• How many years have you practiced divorce law?
• How much of your practice is devoted to advising clients in mediation?
• Have you had any training in divorce mediation?
• What kind of help can I expect from you while I am in mediation?
• Will you review any written agreement prepared by the mediator?
• Will you prepare a written agreement if the mediator doesn't?
• What would you look for in a settlement agreement? The answer should give you some idea of the advisor's attitude toward creative approaches to settlement versus strict adherence to legal rules.
• What do you charge for your services?
• Do you require a retainer in this situation?

If you are uncomfortable with how things went in the interview, or if you did not understand the lawyer because of the use of a lot of legal jargon the lawyer did not explain to you, continue looking. To make the best of time spent with a consulting lawyer, it's important to find someone you feel comfortable working with..

Working With a Legal Advisor

You can expect some basic things from your legal advisor. And you can take some actions to make the most of the time and money you spend on consulting with your legal advisor.

Communication. First, your legal advisor should communicate clearly and in plain English. By the same token, you'll need to take responsibility for your end of the communications. If you don't understand something, say so. Be persistent. Ask questions until you are sure you get it. Your advisor should be open to your questions.

Responsiveness. Expect your legal advisor to respond to your telephone calls or letters within a reasonable time, usually two or three days for non-urgent phone messages and a week or so for letters. You are not your legal advisor's only client, so there will be times when you can't reach your advisor right away. You can and should expect to hear back within a reasonable time, however. If a special urgency or deadline arises, include that information in your message.

Questions. Before meeting with your legal advisor, write down your questions and concerns. This will ensure you do not forget to address any important issues. Leave room to jot down your advisor's answers and note what you plan to do next. Bring the list with you to the appointment. Tell your advisor that you have a list of questions and double-check the list at the end of the meeting. Write down notes of your advisor's answers as you go along. Go as slowly as you need to.

Support persons. If you're having trouble focusing and find it difficult to remember your questions or the answers, consider bringing a support person--a friend or family member with you. Be sure to clear this with your advisor ahead of time. Ask your support person to take notes for you during the meeting. Some people find it helpful to tape record their meetings with their legal advisor. If you think this would be useful, be sure to discuss it with your advisor in advance.

Before you leave. Before you leave, go back over what's been discussed and ask your advisor to help you come up with a plan of action based on the advice you've been given. This might consist of getting certain information together, or having a plan for things to say and questions to ask at the next mediation session. Write down notes of your plan of action.

Using the advice. Take seriously the advice you get. You are paying a professional to give you advice you wouldn't think of on your own. Make sure you understand the advice and the reasons for it. Consider it carefully before accepting or rejecting it. Bear in mind that you may not always like what you hear from your legal advisor. Some legal rules may not seem fair to you. You still need to know them in order to maintain a realistic approach in the mediation.

Lawyers as Mediators

The state of Iowa allows lawyers to act as mediators in family disputes and governs the standards of practice they must follow. (IA Chapter 11 Rules Governing Standards of Practice for Lawyer Mediators in Family Disputes)

What the parties can expect: The lawyer/mediator’s role includes a number of duties to the parties, including the duty to:

• Define and describe the mediation process to the parties;
• Disclose the cost before the parties agree to mediate;
• Provide an orientation session with an overview of the process;
• Assess whether mediation is appropriate for the parties;
• Discuss the mechanics of the process so that participants understand the differences between mediation and other means of conflict resolution;
• Discuss the issues to be resolved in mediation as mutually described by the participants;
• Explain that the mediator’s perceived views are to be given no weight in the decision making process;
• Explain that if mediator finds one or both parties are not participating in good faith, the mediator can suspend the process at any time;
• Explain that mediators cannot charge a fee based on the outcome of the process;
• Explain that mediators cannot represent either party in any other matter during the process or for a 3-year period after the mediation;
• Disclose the circumstances in which the mediator may meet alone with either participant;
• Explain that the mediator has a duty to be impartial as between the participants;
• Explain that mediator will obtain agreement from each party as to whether the mediator may speak with either participant’s lawyers during the process;
• Mediator has a duty to ensure both participants make decisions based on sufficient information and knowledge. This may require the mediator to recommend expert or legal consultation to ensure balanced negotiations.
• Explain that mediator has a duty to suspend or terminate mediation when continuation would harm one or more participants;
• Explain that if the mediator believes the participants are unable or unwilling to meaningfully participate in the process or tat reasonable agreement is unlikely, the mediator may suspend or terminate mediation and should encourage the parties to seek appropriate professional help;
• foster a balanced dialog and to prevent intimidation of any party;
• to advise participants to obtain legal review prior to finalizing any agreement;
• to inform participants to obtain independent legal counsel for advice and counsel throughout the process.
• Specifically, the mediator has a duty to warn that without independent legal counsel, one may give up legal rights with respect to the following types of issues:
  • Real and personal property
  • Income taxes regarding division of property, spousal support, or child support
  • Spousal Support
  • Custody, visitation, and support
  • Court costs and attorneys’ fees
  • Subsequent modifications and substantial changes in circumstances

(Iowa Court Rules 11.1 – 11.8)