Linda Scher
Family Mediator and Facilitator



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THE ROLE AND SELECTION
OF ATTORNEYS FOR
YOUR MEDIATION PROCESS

WHY USE AN ATTORNEY?

There are many reasons to seek legal consultation during the mediation process:

(1) To Insure That You Are Making A Fully Informed Decision

You want to be sure that the decisions you arrive at are made with all available information. The rules and expected outcomes of the legal system are important for you to understand so that you can make an informed choice to follow those rules or vary from them (when permitted) in an intentional way.

(2) To Insure Finality of the Agreement

You do not want to commit to an agreement that you later regret because you were missing important legal information. Neither do you want the other person to challenge the agreement later as being made without knowledge of important legal information. If you both seek legal consultation, the chances of either of you seeking to revisit a final mediated agreement or being successful in changing the agreement through the legal process are much smaller. This consideration speaks to the finality of the original agreement. Later modification to adjust for new developments affecting the parenting plan, child finances or spousal support are separately considered.

(3) To Insure That The Agreement Has The Legal Effect Intended

You want to be sure that the mediated agreement will be accepted by the court and that it is not incomplete or unclear. Although I make every effort to insure that this is the case, there may be legal implications or changes to the rules which I may not be aware of.

THE MEDIATOR IS NOT YOUR ATTORNEY AND THE LEGAL INFORMATION I PROVIDE IS NOT A SUBSTITUTE FOR LEGAL ADVICE.

HOW DO YOU CHOOSE AN ATTORNEY WHO SUPPORTS MEDIATION?

When you seek to select an attorney to consult with, you want to be sure that the attorney understands the role you wish them to take in mediation and is agreeable to taking that role:

(1) Supporting the Mediation Process

The essential principle of mediation is that you are in control of your own decision. Most attorneys are not trained to act as a supporter of your decision-making process, but to rather are trained to be the person who controls the decision-making process and champions your position in that process. Talk with the attorney about the difference between these roles and ask if he or she feels comfortable in the supportive position.

(2) Supporting a Mutually Agreeable Outcome

The focus of mediation is to achieve a win-win solution that satisfies all participants. Most attorneys are trained to look at a win-lose solutions that achieve the best possible outcome at the other person's expense. Talk with the attorney about not just your goals and perspective, but those of the other person as well. Ask if he or she feels comfortable supporting you in reaching a collaborative outcome that may involve giving up some of your less primary goals in the interest of finding common ground.

(3) Supporting Your Achievement of a Fully Informed Decision

Your ability to represent your own interest in mediation depends on your ability to know as much information as possible about your situation. You need to hear from an attorney what the RANGE of outcomes might be in the system, not just the best possible outcome for you. You need to know the principles on which the legal rules are based, not just what the rules are. Ask the attorney if he or she feels comfortable helping you understand what's behind the rules not just which outcome they might dictate for you in court.

(4) Keeping the Cost Down

Mediation can be more cost-effective than an attorney-brokered agreement. Obtaining legal advice during the process can save money that would otherwise be spent on re-mediating decisions after new legal information is learned. While I cannot prepare the legal forms that will complete your legal process, my intention is to write a comprehensive mediated agreement that requires as little custom legal drafting as possible. Talk with the attorney about your desire to have the mediated agreement converted into a final Judgment that is neutral and faithful to your joint agreements. In other words, the Judgment should not have new provisions that favor one person. Any matter that is not addressed in the mediated agreement should be addressed in the draft review process and discussed jointly in the mediation process. This will avoid the increased cost of paying attorneys to argue over the legal papers.

All text, graphics & information on this site © 2004 Linda Scher