Do We Need Lawyers If We Do Mediation?
November 17, 2014
Do we need lawyers if we are doing mediation? Isn't that redundant? Tihis is a question we are asked frequently.
Or sometimes our office receives calls, where a party asks will the Mediator answer our legal questions? This question belies a fundamental misunderstanding of the mediation process. In mediation, parties can come to any agreement they wish , regardless of what the law might require or impose in a certain situation.
Unfortunately, myths and misconceptions about mediation exist. While most people generally understand that mediation is a collaborative process between the parties, few truly grasp how self-directed the process is.
Oftentimes couples think Let's do mediation because
– it is less costly;
– it is quicker; and,
– we get along so well, we don't need lawyers.
While, it is true that mediation usually is less costly, and quicker, it is not true that parties do not need lawyers. In our mediations, we recommend that the parties engage independent counsel who serve in the background as needed to answer questions , and review or draft documents.
Again, clients may ask, isn't this un-necessary? Doesn't having iawyers defeat the purpose of mediation? Now we have 3 people involved, instead of just 2 lawyers. Our answer is NO. We find having lawyers in the background smooths the process and keeps the Mediation moving forward, and thus, keeps costs down.
We believe the role of the mediator is to facilitate the conversation between the parties. The Mediator can raise issues that need to be addressed that the parties may not have considered. The Mediator can subtly move the parties toward workable resolutions that have a greater degree of success because the parties (not the lawyers) have come up with solutions. To do this, the Mediator needs to remain neutral – favoring neither party, and showing partiality to no result. If one or both parties get stuck on “legalities” they always can go to their lawyers for advice. They key is to return to Mediation with the legal “answer,” which they may choose to follow, or not. Neither party, however, feels betrayed or favored by any legal advice or answer provided by the Mediator.
Mediation is an excellent option for couples who do not need, or wish, to be constricted by what the “law says.” It is optimal for couples who desire to take control of their situation and work matters out in an amicable fashion. We find mediation works especially well with couples who have relatively equal power in the relationship, who are motivated to engage in the process, and who are equally desirous of reaching a resolution. With such parties, some of this things that can be mediated are:
working out custody for the children; negotiating an interim support agreement, payment of legal fees; or determining all aspects of property settlement and full and final divorce,
If you think you are a good candidate for mediation, call us to discuss your situation. We are happy to help you evaluate if mediation is right for you.