Episode 33 Transcript: Outside Attorneys in Divorce Mediation

In today’s mini episode, we are going to be talking about working with outside attorneys while you are in a mediation process. And basically, what I want to do for you is describe the different levels of attorney involvement that you can opt for if you are in a mediation.

At one end of the spectrum would be no attorney involvement at all. This would involve you and your spouse meeting only with the mediator, and neither of you ever consulting with an outside attorney. Not during the mediation process Not to review your draft agreement. At no point in the process, basically.

The next level up of involvement would be going through the mediation process with just you, your spouse and the mediator. And when it comes time to have somebody review the draft of your agreement, of your separation agreement, your divorce agreement, then you will send that draft to an outside attorney and have that person review it and give you some feedback. Typically, in those scenarios, the feedback is pretty minimal, or the amount of feedback that you wish to incorporate is pretty minimal and you, your spouse and your mediator will work together to incorporate your review attorney’s feedback.

The next level of involvement would be for you to have somebody, an attorney, who is available to you outside the mediation process on an ongoing basis, however much you need, before your contract is drafted. So it could be from before your first mediation session or at any point during your mediation, they’re available to meet with you in person, to exchange emails, to talk on the phone, to help you brainstorm challenges that you’re facing or answer questions that you don’t feel like asking in the mediation room. And then typically, that person is also going to review your ultimate contract when it’s ready for review.

When an outside attorney is only reviewing your contract and they are not consulting with you at all during the mediation process, I refer to that person as a “review attorney”. Whereas, when your outside attorney is available to you to consult with throughout the mediation process and then will also review your ultimate agreement, I refer to that person as a “consulting attorney”. There’s no hard and fast science to those terms. I just want to be clear about the way that I use them.

And then I would say at the highest level of attorney involvement in what could still be called a mediation process would be where both you and your spouse had attorneys from the outside of the process, you’ve been negotiating in part, or for the most part, through your attorneys, but there are a subset of issues – maybe it’s parenting issues, for instance – that you and your attorneys have agreed that you and your spouse will meet with a mediator to resolve as part of your overall negotiation of your settlements.

So, in that last example, the attorneys are really having almost the lead role, but there’s a mediator there to support your discussion of issues that are seen as less legal or less financial in nature. And, in that scenario, your attorneys would definitely take the lead on drafting your ultimate agreement as opposed to your mediator. Whereas, in the first three scenarios that I shared, it’s more often your mediator who’s taking the lead in drafting your ultimate agreement.

So that’s it for our mini episode on outside attorneys’ participation in the mediation process. I hope this episode was helpful for you.


Episode 34 Transcript: Legal Separation vs. Legal Divorce

Episode 32 Transcript: Who Should Draft Your Agreement in Divorce Mediation?