Attorney Assisted Mediation: An Alternative to High Cost/High Conflict Divorce

As mediation continues to build momentum as a viable, and often less costly, form of dispute resolution, so has the role of your attorney in the mediation process.  Mediation is a form of alternative dispute resolution in which spouses meet with a qualified neutral professional, usually and preferably an experienced divorce attorney, to discuss their child related and/or financial issues, exchange pertinent information, and work with the mediator to create an out-of-court settlement.  While this process does not involve retained experts or litigation, most parties do in fact consult with and obtain advice from an attorney prior to, during, and after the mediation process.

1.  Educate
The attorney’s role in the mediation process starts with providing the client with education.  Your lawyer must not only explain the process so you are more comfortable but he or she must provide you with the law and apply it to your case so that you have a proper framework for your discussions.

2.  Gather Information
Parties may need help in deciding what documents and information are necessary to evaluate issues in the case before the process begins.  Paystubs, corporate documents, tax records, real estate documents, retirement records, and other materials may be essential in clarifying your rights.  Your attorney should assist you in drawing up a list of such documents to bring to mediation and review those documents with you as they are gathered.

3.  Support the Mediation Process
It is possible that your attorney will not be present during the mediation session itself, but that does not preclude him or her from providing consultation throughout the process.  Your attorney can assist you in formulating strategy and evaluating proposals.   Attorneys present in the mediation can help you navigate legal issues as they arise while at the same time being there to coach you and provide moral support.  Your attorney’s role in the mediation is not to take every legal step to strengthen your position but rather to help you reach an acceptable and reasonable settlement.  The very best attorney will help you find your voice in the process and to constructively communicate with your soon-to-be ex-spouse.

4.  Review Options
Once mediation begins and the options and issues crystallize, your attorney can help you evaluate those options in terms of your legal rights and future needs.  Your counsel’s legal advice and expertise are essential in helping you appreciate which options are most and least favorable, the legal strength of the position on various issues as well as other issues that are or may be important and how each option might effect your goals.

5.  Review and Finalize Legal Documents
At the end of the mediation process, your attorney looks over the Memorandum of Understanding with you to make sure every relevant issue is addressed, parenting plans are workable, financial/property settlements are equitable, etc.  Your attorney should also review the Memorandum to ensure it will not be rejected by the court for any reason.  Assuming you are consulting with your attorney throughout the process, this is not the time to make massive changes.  It is time to review and finalize a working document.

Your attorney’s performing his or her job well enables you to mediate the divorce successfully and achieve an acceptable settlement without subjecting your family to the extreme emotional and financial expense often caused by litigation.

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