The traditional role of the lawyer is to represent the interests of the client, by advising the client regarding current laws, counseling the client, and managing the legal process for the client. While the lawyer will continue to perform each of these traditional functions in the mediation process, the manner and the context in which those functions are performed will be different. The vital distinction is that mediation is a non-adversarial process, through which each client is encouraged to take responsibility for resolving the dispute outside of the courtroom.
A Divorce Lawyer’s Role Prior to Mediation: The divorce lawyer can assist their client in making informed decisions about the mediation process before the process begins wherein the lawyer encourages their client to resolve the dispute, consistent with the principles of mediation. The lawyer explains to the client the nature of the mediation process, what to expect during mediation, the relevant divorce-related laws (i.e. parenting time, decision-making, maintenance, child support, financial disclosures and allocation), and how the mediation process impacts the court procedures. The divorce lawyer can help their client make an informed choice of a mediator based upon such factors as the nature and complexity of the case, the background and experience of the mediator, and the potential fees involved. The lawyer assists the client in determining whether timing is a factor in choosing mediation. By obtaining a divorce lawyer prior to mediation, it allows the client to understand the range of outcomes that are possible if the case is litigated and to formulate a range of acceptable outcomes for the mediation process based on current law.
A Divorce Lawyer’s Role During Mediation: The divorce lawyer’s role is to assist the client in negotiating for himself or herself, bearing in mind the non-adversarial nature of mediation. The lawyer guides the client in negotiating by encouraging the client to express thoughts and feelings, helping their client define their interests, and helping the client gather necessary information, generate options, and examine consequences. The lawyer can guide the client through settlement discussions whether the lawyer attends the mediation sessions or not. The lawyer may consult with and advise the client before and after the session(s). The lawyer might also advise the client of when it would be wise to request a break in mediation for the opportunity to consult the lawyer for additional information and advice. In some cases, the client and the lawyer may arrange for the lawyer to be available by telephone for consultation while the mediation is being conducted. The lawyer manages the legal process for the client while mediation is being conducted, keeping the client informed of important dates, responding to and filing necessary pleadings, and conducting discovery as is deemed necessary based on the issues presented in each case.
A Divorce Lawyer’s Attendance at the Mediation Session(s): The choice of whether the lawyer attends the session(s), as well as the extent of participation by the lawyer, ultimately belongs to the client. The client makes his or her choice after discussion with the lawyer and consideration of the lawyer’s advice. Because the success of the mediation process depends, among other things, upon each client making informed decisions in resolving the dispute, the lawyer’s task at this stage is to enable the client to make an informed decision about these issues. A client suffers no prejudice if he or she chooses to attend mediation without his or her lawyer present. Mediators do not make any findings of fact and do not impose any decisions upon the parties. While mediators may encourage and assist the parties in resolving their dispute, they are prohibited from compelling or coercing the parties into a settlement. In reporting the outcome of the mediation, the mediator shall indicate only the terms of any agreement reached or the fact that no agreement was reached. Mediators should advise each client that they have the opportunity to consult with an independent lawyer and is encouraged to do so.
A Divorce Lawyer’s Role After Mediation: The lawyer assists the client in reviewing the terms of any mediated agreement, testing the client’s understanding of the terms, and, arguably most important: preparing formal agreements outlining these mediated terms that can subsequently be entered by the court in the form of a Marital Settlement Agreement, Allocation Judgment and/or Judgment for Dissolution of Marriage.
The lawyer helps the client finalize the legal process when mediation is concluded, whether mediation resulted in complete, partial or no agreement. If no agreement or only partial agreement has been reached, the lawyer assists the client in continuing the process, which eventually will dispose of the entire case through trial or further settlement efforts.
However, it is important to note that because mediation is a voluntary process in which the parties take responsibility for and create their own solutions, the final terms are not enforceable until entered by the court via appropriately drafted and reviewed documents, usually prepared by their individual lawyer.
