Why You Should Have Counsel Before or During Mediation


Mediation offers many advantages over litigation.  Mediation is far less expensive, occurs at the pace you choose, allows you to reach creative solutions tailored to your own lives, and leads to outcomes that are generally more sustainable than court-ordered outcomes.  However, if you choose mediation, you should do it right.  The right way to pursue mediation is to consult counsel before or during the mediation process.


As I’ve mentioned previously on this blog, the mediator is a third party neutral who cannot offer legal advice.  So, in order for you to know your rights under the law and properly strategize arguments and approaches to obtain those rights, you need to meet with separate counsel.  It’s important to talk to that counsel before or during the mediation, not after.  If your attorney gives you advice pre-mediation, you will have an informed approach to mediation and effectively use the mediation time.  If you attorney gives you advice post-mediation, you may realize that you want to back out of the agreement you just reached in mediation, which would be a waste of your time, your spouse’s time, and the expensive mediator’s time.


Some clients believe that they can read the law themselves and do not need an attorney at all.  Beware!  At the uncontested hearing, when the court decides whether or not to approve your Separation Agreement, the court will ask if you had the opportunity to consult counsel.  If you answer negatively, the court will examine your Separation Agreement with extra scrutiny because it will be less likely to be fair and reasonable.  Again, everyone’s time will be wasted if the court refuses to approve the Separation Agreement. 

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