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Divorce Mediation and the Consulting Attorney

by | Oct 12, 2023 | Mediation

Divorce Mediation is all about charting a path for the divorcing couple to get educated so they can make well informed decisions, exchange relevant information so they can stand on an equal footing as they make those decisions, and to provide them with the professional resources they need along the way.  Serving as the mediator there are certain things that I can and cannot do as the neutral professional working with the couple.  I can educate the couple by providing very detailed information about the law and about the couple’s rights and responsibilities as they have been defined by California statute and case law.  In doing this I present the information from a neutral place.  The way I am allowed to work with both sides in a divorce is by making it very clear that I am providing the information as an education to help them get in a position where they can make the decisions they will need to make on their own.  I cannot and therefore, do not, provide legal advice in the process.  


Mediating couples are not required to separately hire attorneys to formally or informally represent them.  With that said, couples absolutely can hire their own attorney to consult with them, and provide them legal advice as they mediate their case.  When a mediating spouse hires an attorney we refer to that attorney as a “consulting attorney.”  In this week’s blog we explore why you might want to hire a consulting attorney, and some considerations in selecting an attorney to play this role.  


Why Hire a Consulting Attorney.  My goal with each divorce that I mediate is to do everything I can to make sure each spouse is in a position to make well informed decisions, that they have all the information they need to make those decisions and that each spouse make decisions that place them in a healthy place to move forward in life after the divorce.  My mediation process is geared toward accomplishing these things.  There are times when one or both spouses bringing on a consulting attorney will give them necessary added support.


Legal Advice.  Sometimes the applicable law is complicated or there are gray areas that make the legal issues we are tackling through mediation complicated.  Since I cannot “advise” either spouse what to do, occasionally, especially when there are difficult legal concepts at play, it may be helpful for each spouse to work with an attorney to better understand the strengths and weaknesses of their own position.  A consulting attorney can advise and provide an analysis of the issues in the best light for their client, while the mediator can provide input but purely from a neutral place.  It is up to each couple to decide if they are in a comfortable place to make decisions after getting the education from the mediator or if it would be helpful for them to additionally receive legal advice from their own attorney.  As the mediator, I want couples to be in the best place possible to make well informed decisions, so I embrace the use of consulting attorneys to whatever degree makes each client most comfortable.


Extra Support  I do everything I can to provide an environment that best supports both spouses.  I do everything within my power to make sure both spouses are treated fairly but as the neutral I am not positioned to be the advocate for either party.  I provide support but at the end of the day each spouse needs to get to a place where they make good decisions for themselves.  When one spouse is overly generous with the other spouse or elects not to pursue their rights under the law, I will make it clear to them what they are doing and how they might be deviating from what they are entitled to, but in the end I must accept the terms they are agreeing to.  In these situations it is especially important for each spouse to get all the additional support they can.  I do not want anyone regretting the terms they have agreed to so getting all the support possible to assure sound decisions are made is essential.  In these situations having a consulting attorney to help with support can be invaluable.


Extra Set of Eyes.  Once a couple has reached agreement, the mediator’s work is to put all the paperwork together to formally resolve things with the Court.  I seek to neutrally capture the terms in a Marital Settlement Agreement which gets signed off on by the couple and filed with the Court.  With each settlement that I write I implore the couple to review it carefully to make sure it is doing exactly what they want it to.  I have no qualms with each spouse having a consulting attorney go over it with them to check the work and make sure it best serves the client.  The more eyes to look over it, the better.  It is each party’s job to make sure the agreement does as they wish it to, and getting input from their own attorney can be a welcome added safeguard.


Advocacy in Mediation.  Sometimes a spouse may need additional support with advocacy to make mediation a viable option.  If there is a knowledge or power differential, one spouse may need help beyond what can be provided by the mediator to make mediation a good process.  Each spouse has the option to have their attorney present in the mediation.  My practice includes handling mediations where there are no attorneys and mediations where one or both sides have attorneys.   I require that couples have clear communication about whether or not they will include their attorney in the mediation itself so there are no surprises when the mediation begins.  Since mediation is a voluntary process, both parties need to agree who will be participating in the sessions.  I support both spouses having all the support they need, especially if it will serve to even the playing field.


Some Considerations in Selecting a Consulting Attorney  There are some very important considerations when selecting someone to play the role as your consulting attorney.


Mindset.  Mediation is a different mindset than Litigation.  Mediation comes from a place of collaborating for the common good.  Litigation involves each side advocating to get the best for themselves.  When you hire a consulting attorney it is important that they understand and support the mediation process of working collaboratively together to avoid the battle that arises when each spouse is trying to take the most they can.  Mediation is not about rolling over or getting taken advantage of.  It does, however, involve having a conversation about how we can manage to make sure both sides are okay coming out the other side.  Hiring an attorney who is all about getting everything you possibly can may jeopardize the ability for the couple to reach a solution through reasonable compromise.  Hiring an attorney that can provide the advice and support  you need while also being supportive of the process of mediation is an important consideration as you make the selection.


Experience and Respect  Divorce involves a very specialized area of law.  Hiring a consulting attorney who has experience in family law is essential to assure any advice you are receiving is accurate and reliable.  A common theme in litigated divorces is the big gap that arises between the expectations of each party.  It is important for attorneys to give their clients a reality check so that expectations are reasonable and realistic.  It can pose a challenge in mediation when the education being provided by the mediator is contrary to the advice either spouse is receiving from their attorney.  When this does happen it is a great opportunity to dig in deeper to assure that the couple is relying on the correct information, but when a mediating spouse comes into mediation with inaccurate information and unreasonable expectations, things can get a lot more difficult to be able to proceed efficiently, practically, and reasonably through the process.  Social media provides an easy way to check the credentials of the attorney you select.  Hiring an attorney that someone you know respects, or hiring someone who has developed a good online reputation through amassing positive reviews are good methods of assuring you end up with the right, competent and respected consulting professional.


Mediation is all about making sure you are in a good place to make informed decisions.  As a mediator I not only seek to do all I can do to assure that my process delivers you to that place, but I also embrace couples using whatever other resources they might need to support the process.  Choosing a consulting attorney that supports the mediation process, while assuring their client is best positioned to make educated decisions, is one more tool at your disposal to assure you are best situated to accomplish a healthy divorce.