Episode 67 Transcript: Coordinating Outside Attorney Review

In this episode, I wanted to talk about and give you some pointers on coordinating your attorney’s review of your contract, in particular, when you have been in a mediation process, and your contract has been drafted by your mediator. I think when people, in contrast, are in more of an attorney-led negotiation process, it can be a little more clear how to proceed with the drafting. One attorney drafts it, they send it to the other attorney who reviews it and sends back their comments, and they can go back and forth from attorney to attorney. Not to say that it’s easy, but in terms of the process, it can be pretty straightforward. Whereas when you’ve been in a mediation process, and you have a contract that’s been drafted by your mediator, and you then receive that contract, the draft of your agreement, and you’re told to go have your attorneys review it, it pays to give a little bit of thought at the outset as to the best process for doing that, for having the attorneys review the contract and to pay some attention to managing their review of the contract.

Essentially, there are two different ways to have outside attorneys review and comment on and edit your draft agreement. In terms of timeline and order, that is either having both attorneys review the agreement at roughly the same time, not in coordination with one another, and then having those attorneys send each of their separate sets of comments either back to you directly and you filter back what is important to you to the mediator, or what I would say is slightly more common would be to have the attorneys do their separate review and they both send their comments back to the mediator directly, who then compiles the comments into one revised version of the draft that incorporates your attorney’s comments and your spouse’s attorney’s comments.

In doing that, the mediator can also play the role of, where both attorneys made the same comment; they can just make that change in the agreement and delete those comments. So they can use their judgment as the neutral to say, “Okay, we have agreement on this point. I’m just going to make that change. I don’t need to highlight that for the clients.” The changes should always be highlighted and will be tracked in the document, meaning they wouldn’t have to include both attorneys’ comments saying the exact same thing about a particular section. They could just make the recommended change.

The other way to have your attorneys approach their review would be to have them stagger and coordinate their review with one another. So, one person’s attorney would review the original draft first. They would insert their edits and comments into the agreement, and those would be done in Track Changes. Word makes this all really easy. Then that edited version would be sent to the other party’s attorney, and the attorney would go through and do the exact same thing. The benefit of approaching things in this way is that where the second attorney is reviewing both the draft and changes proposed by the first attorney, they can simply accept those changes where the changes are fine by them, and in so doing, can potentially reduce the number of total edits or comments that need to be reviewed. They can just okay them, so to speak, and move forward, and they can highlight areas where they disagree about a change or aren’t okay with the proposed change.

Those are the two principal ways that your outside attorneys can approach reviewing your draft agreement. What I should clarify is that no matter which of those ways you and your attorneys elect, in the background, your attorneys should always be in conversation with you first about their proposed comments, edits, changes to the agreement, should be getting your feedback after you’ve read the contract, and incorporating that into their changes as well.

That can happen in either order. Let’s say you’ve agreed that your attorney is going to do the first review and then they’ll pass it to your spouse’s attorney to do the second review. Before your attorney passes the edited agreement to your spouse’s attorney, you should review the contract, and they should review the contract, and you guys should have a conversation, whether it’s more in writing through your comments or by phone or in person. You should have a conversation with them to go through the changes that they’re recommending and the changes you recommend or concerns, questions you have, whatever it may be, so that ultimately the changes that your attorney is sending to your spouse’s attorney would incorporate your thoughts and questions and would also only incorporate those changes of your attorney that you’ve approved.

Your attorney might suggest a particular change. Like for instance, you may be planning to have a joint account to handle all kids’ expenses out of. Your attorney may say, “Oh, I think that’s a terrible idea. You don’t ever want to have a joint account with an ex-spouse. I always recommend against that.” Well, you can veto that suggestion and say, “You know, I appreciate your feedback.” Say it however you want to say it, “But I get it, and we’ve thought about that, and we want to join accounts.” You absolutely, as the client, need to review and okay all of the substantive changes and edits that your attorney is suggesting.

On the more technical, legal stuff, you probably won’t have an opinion one way or another, and you wouldn’t be expected to, and it’s okay to defer to your attorney’s judgment on that. But on the substantive stuff, like do you have a joint account or not? Do you equalize the retirement accounts, or do you just say, “Hey, you know what? It feels fair to us that each person just keeps their own. They’re not perfectly equal, but we don’t care”? Your attorney might recommend against that, and you can veto that and say, “Yeah, I know, and I’ve thought about that, and I understand it, and I’m good with what we’ve agreed to, so I don’t want you to input a comment about needing to equalize the retirement accounts,” for example.

That kind of back and forth between you and your attorney synthesizing your shared views and shared suggested edits to the draft that should happen before your attorney sends his or her comments anywhere, whether they’re sending their comments to the other attorney or they’re send their comments back to the mediator. Always, the comments they send should be a combined version of your thoughts and their thoughts that you ultimately have signed off on.

Depending on the case and on the particular issues or topics that the attorneys are proposing changes to or that are still being worked out or in dispute, it can feel more or less efficient to have the mediator take the lead on amending the draft and synthesizing the different versions of edits versus having the attorneys take the lead on doing that. You’re just going to have to feel out in your particular case at the time, does it feel like it would be more efficient to have your attorneys step in and take the lead on revising the draft between them, see where they get, and if there’s anything that’s outstanding or that they’re really stuck on, take that back to the mediator to have the mediator help you work through? Or does it feel more efficient giving your particular process to have the attorneys send their comments either directly to the mediator once you’ve approved them?

Or they can send their comments to you, and you can say, “You know what? I’ll take these back as I determine at the time, and the ones that I want to ignore, I’ll ignore. I’ll convey to the mediator myself directly what I want to convey, taking into consideration your or my attorney’s comments, but ultimately, I’ll be the messenger, and I’ll take this information back to the mediator.” That may feel like a more efficient way, more effective way to run your process versus going through attorneys. There’s not a right answer there. You just have to feel it out based on your situation at the time.

Just bear in mind that if your instinct was to have the attorneys take the lead on revising the draft and then you find that that is not seeming helpful and they’re getting really bogged down and acrimonious and seem to be spiraling around a couple of points that both you and your spouse are like, “These are not important to us,” you can always pull back and say, “Hey, actually, pause. We’re going to try to work through these issues with our mediator, see what we can come to, and then reach back out to you, our attorneys, if we need more help.”

The process is always malleable, and you can and should tweak it to fit your needs. But at the outset of reviewing the original draft of your agreement, it is really helpful to give some thought to how you want to structure that review and how you want to coordinate your attorney’s review and manage your attorney’s review so that your process is as efficient and effective as possible.

So, that was our episode on coordinating and managing outside attorney review of your draft agreement. I hope it was helpful for you.

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