When working with a couple in divorce mediation, I strongly encourage, and sometimes insist, that each party hire a divorce attorney to act as review counsel. Often one or both parties will question the need for review counsel. Why, I am asked, if you are a divorce lawyer, do I need to hire another divorce lawyer as review counsel?
Your Divorce Mediator Will Not Give You Legal Advice
Your divorce mediator will help you and your spouse have fruitful conversations about how to resolve the issues of your divorce. These include both financial issues, such as asset division and support, as well as family issues, such as the weekly and holiday parenting schedules. You will have the opportunity to craft solutions that best meet the needs of each member of your family.
During the negotiations, your divorce mediator will give you general information about the divorce laws and how the law might affect your situation. Your mediator will not, however, give you legal advice. That is because a mediator must remain impartial. Your mediator will provide only general legal information, and will not discuss the law as seen from your individual perspective.
Hiring a Divorce Lawyer as Review Counsel Makes Sense
Hiring a divorce lawyer as review counsel will provide you with information your mediator cannot provide for you. He or she will review your divorce agreement and explain the significance of each provision in a way you can understand. Often a conversation with your review counsel can help flesh out the implications of a decision you have made. In addition, your review counsel can tell you whether the agreements you have reached are typical or unusual. You might also learn whether you are likely to have reached the same decisions if you had not used divorce mediation. Your divorce agreement will probably have implications for your life for years to come. The opinion of review counsel is a wise investment.
Select the Right Divorce Lawyer as your Review Counsel
It is important to choose the right divorce lawyer as review counsel. Your divorce mediator should be able to provide you with a list of divorce lawyers to choose from. If you opt to use a divorce lawyer not on the mediator’s list, consider whether such person has the qualities of a good review counsel.
• Is the divorce lawyer “mediation-friendly”?
The best review counsel are often mediators themselves. If they are not, they should at a minimum, be knowledgeable about and respectful of the mediation process. A divorce lawyer acting as review counsel should understand that you are committed to the mediation process. You should be able to trust that your review counsel has your best interests at heart and is not looking to push you into an adversarial mode to drum up legal fees. He or she should offer you information without trying to change your mind about the decisions you have reached in mediation. That being said, if a mediation-friendly review counsel advises that your agreement is very far from the norm, pay attention.
• Is your review counsel knowledgeable about the divorce laws of your state?
It is important to have review counsel whose practice is dedicated to the field of family law in your state. Family law decisions are based upon the facts of each specific case. Only a lawyer who is familiar with the local divorce statutes and case law can advise you properly about the wisdom of the decisions you have reached.
• Does your divorce lawyer have a good reputation in the community?
It goes without saying that a personal referral from someone you trust is valuable. Be sure to ask around about a divorce attorney before hiring one. You should look for someone who has a reputation for integrity as well as knowledge and experience. You should also ask whether a divorce attorney is pleasant to work with. Is the attorney available or hard to reach? Do they return phone calls within a reasonable time? Do they ask for a retainer or bill as you go? How many hours do they expect to spend reviewing your mediation agreement?
Sometimes you may want to consult a divorce lawyer during the process of divorce mediation
In divorce mediation you will be encouraged to consider your own values in making decisions before considering the law. What do you think is fair under all of the circumstances? Your mediator will help you examine and articulate your values and your goals for mediation. Each decision you reach will hopefully foster your goals and be in line with your expressed values. Sometimes, however, you may be unclear about whether your agreement makes sense for you and your family. Perhaps you are not familiar with financial issues and are concerned about making the wrong decisions. This can create anxiety and make you feel insecure about the mediation process. It is reasonable, in such cases, to hire an attorney to “coach” you through the divorce process.
In choosing your coaching counsel, apply the same factors you would use in choosing review counsel. Inform any attorney you consult that you are in mediation and plan to stay in mediation. Incorporate your lawyer’s advice as needed, but try not to get stuck in any position that your lawyer recommends. The beauty of the divorce mediation process is the ability to avoid “one size fits all” solutions.