Family Law Blog
My spouse and I want to resolve the issues in our divorce through family mediation; should we see lawyers before or after the mediation?
Family mediation is an excellent way to resolve the legal issues that come up after separation. It avoids the stress, acrimony and high costs of going to Family Court. Mediation can also allow separated spouses to work out the general terms to put in a separation agreement quite quickly. However, as discussed in another blog, each spouse must have a lawyer at the time they sign the separation agreement if they want that agreement to be enforceable; that is, if they want to ensure the other spouse has to obey the terms of the agreement. Although some people may think it sounds contrary to the idea of mediation to hire a lawyer right from the beginning, that is usually what is best for everyone.
People go to mediation because they want to resolve things quickly and on an amicable basis. Some people are under the mistaken belief that speaking to a lawyer right from the beginning will make that quick and amicable settlement impossible. They are worried that the lawyers will raise lots of issues and point out problems with the spouses plans, or the lawyers may encourage their client to take a harder line position to get more, if the lawyers do not actually try to create fights in the hope that the spouses will spend more money on the lawyers to resolve issues. That is a more unfortunate and inaccurate perception. Good family lawyers are focussed on getting matters resolved for their client, on terms that are acceptable to their client, while causing their client as little distress and discomfort as possible. Good family lawyers have lots of clients, and often people are waiting to see them, so they don’t need to make things difficult or make matters take longer that is necessary. Good family lawyers focus on getting their clients to a good resolution, not on the fight. So if what you want is to resolve matters with your spouse in a quick and sensible manner, you can find a lawyer that will help you do that. A good place to start is the websites of collaborative practice organization. Here are the links to Toronto Collaborative Practice and York Collaborative Practice. Even if you do not want to use the collaborative practice model because you would rather do mediation or negotiation, the list of lawyers on a collaborative practice website is useful because those lawyers are interested, and trained, in “interest based negotiation”, which means they know how to get clients what they really want, or need, without a fight in court.
Having a family lawyer assist you even before you start mediation has several important advantages. First, family law is complex and it is extremely unlikely that you will know how the law applies to your particular situation without speaking to a family lawyer. If you read any book on how to settle a matter successfully in mediation, then you will learn the importance of knowing your settlement range. Your settlement range is the range of possible outcomes that goes from your worst alternative to your best alternative. If you see a family lawyer before you go to mediation, then you will have some idea of what the range of fair settlement could be before going to mediation. This prevents the unfortunate circumstance where you go to mediation, and then one spouse or the other sees a lawyer who tells him or her that the settlement is unfair under the law and not something that a court would ever order. When that happens, the settlement breaks down and the parties either have to start negotiating or mediation over from scratch or they end up in court, which is what they were trying to avoid.
A second advantage of having lawyers involved right from the beginning is related to my comments above about finding out from a lawyer that the mediated settlement is not a good one. It may not just be that the settlement is one that is unfair to one party, it is also possible that the settlement may be one that is not allowed under the law. For example, it is only in exceptional, and very specific, circumstance that a court will allow parents to stray away from the Child Support Guidelines when they are resolving child support. If you and your spouse agreed to resolve child support in a manner that is not consistent with the Child Support Guidelines, you may find that your mediated settlement is simply illegal and will be thrown out by a judge. (Here is a video on child support and here is a podcast on child support.)
A third reason for having a lawyer involved during the mediation, and even at the mediation, is that your lawyer can let you know whether what you want or what you are discussing is reasonable. Separations are very difficult and emotional times for you and your spouse. People can have a very hard time separating those emotions from their reasoning skills - and often they are not even aware of that. In addition, sometimes a spouse can feel intimidated, scared, or perhaps overcome with guilt in the presence of the other spouse. For all of these reasons, it is very helpful to have the support of someone who can act as a check to those feelings and provide advice. Family members and friends are often not a good choice because they can be just as emotionally wrapped up in what is going on as the separated spouse. (Hear a judge say that.) However, good family lawyers, even the most emotionally supportive ones, remain professional in all their files (this is their job) and do not become emotionally involved. A good family lawyer will let you know whether, even if what you are feeling is normal, if it is reasonable as well. A good family lawyer will not only keep you on track to a reasonable and appropriate settlement, but will also be able to advise you on the best way to get to the settlement you want (lawyers are professional negotiators).
Some family mediators will only do family mediation if both parties have lawyers. The reason for this is because the lawyers help keep their clients focussed, on track, and negotiate in a productive fashion, during the mediation. In addition, having the lawyers involved makes sure the mediated settlement will last and not get into trouble when the spouses discuss how the law applies to their situation for the purposes of formalizing the separation agreement.
It is very important to remember that family mediators, even ones who are trained as lawyers, cannot act as lawyers while mediating. Their role is very different. The role of a mediator is to get both parties to a settlement, not provide legal advice to either party about the merits of that settlement. A family mediator will not ensure that an agreement is fair to both parties, as the mediator’s job is only to get the parties to an agreement and rely on the parties to know whether that agreement is a good one or bad one for them.
For all these reasons, it is best to hire a family lawyer before starting a family mediation, and it is often helpful to have the family lawyer at the family mediation. Having the family lawyer afterwards can actually lead to the problems that you are trying to avoid by not hiring a lawyer at the beginning.
How mediation works, from start to finish, as well as many of the basic family law principals that can come up and affect mediations, are explained in this $20-easy-to-understand book on Ontario Family Law. It is important for the parties at mediation to understand the basic family law concepts, so they have some idea of might be a good deal and what is a bad deal. Even better that reading about basic family law concepts, is to speak to a good family lawyer who can explain how that law applies to the specific situation of the separated couple. To make an appointment to speak to Certified Specialist in Family Law, John Schuman, call the number at the top of the page or use the form below.
This article has been shared around on the internet. (To share this yourself, see the sharing buttons at the bottom of the page.) As a result there have been some good and very helpful comments on this article. Here are a few:
Janet Uthe • I think this is excellent advice. So many times, I read information from mediators who make it sound as if lawyers are the enemy of reasonable negotiated settlements. They imply that all lawyers are aggressive & will extend the litigation for the purpose of charging more in fees. While, of course, there are always some bad applies, this is a more balanced &, ultimately, more informative comment on the topic of mediating a divorce settlement.
henry lebensbaum • Mediation without consulting your own lawyer, is like fishing without a rod. It can be done, but the risk of problems outweighs the benefits. The assistance of another set of eyes and ears is critical and essential.
Carole Ann Geronimo • A short duration marriage, where the parties are both W-2 employees, close to the same salary, easily divisible assets and no real issues relative to parenting time should not cost these parties a large amount of money to put together a settlement agreement and mediation can be the most cost effective way of handling it. However, I've only seen a handful of those type of cases and they were resolved very expeditiously even when the parties had unequal demands and with a small expenditure of marital assets.
But in my experience, there are rarely two parties who are evenly matched. Either it's funds, wit, wisdom, stamina, etc. I wholeheartedly believe that parties should seek out legal representation, have their advocate carefully review their finances, assets, future financial situation and then provide a template for best/worst case so that the client knows what their rights are, what the possible resolutions might be given what they told their attorney or provided in financial documentation, the law and the other factors that judges use to determine alimony, distribution, child support, pension allocation, etc. Only when someone is equipped with knowledge about what may be or probably will be (I am a natural moderate and always counsel for moderation unless their are domestic violence or child abuse issues), can the party approach a mediation table as an equal participant. I find that the weakest mediation terms are negotiated when the parties do not know their rights and the mediator does not take the time to thoroughly review the finances, the facts of the marriage and explore any factors that might change the financial dynamic (like being out of work for 20 years with no current skills in a terrible financial environment) and/or one party "settles" because there is no agreement up front to continue the marital standard of living pendente mediation, the other party is harassing them or for a myriad of other reasons. I don't see my role of attorney as necessarily adversarial but more as an informative advocate who is espousing the conditions why my client's position is xyz... (this position may be slightly better than the best case scenario, but it is the opening of the negotiation and unless I know my adversary and know that reason works with them, I don't open with what we will accept) and unless the attorney for the other side will not negotiate, the attorneys can argue the legal consequences of the parties' financial situation. If negotiation breaks down, I recommend that the parties seek mediation. Sometimes, when I know the name of the attorney representing the other side initially, I'll recommend mediation without attorneys because of the other attorneys reputation for not negotiating; however, often the litigant gravitates to the attorney who is not only willing but eager to litigate, etc., rather than settle.
In sum, there is no single case scenario, everything is fact driven. But as attorneys we should remember that our jobs are to inform, not incite; advise, not inflame; advocate not oppose. Representing clients zealously doesn't mean all out war, you must match your weaponry to the situation and the client's needs. Sometimes clients have to be told that their demands are unreasonable and a skilled advocate does that without losing the client but as an attorney you have to be willing to lose the client rather than advocate untenable unreasonable and sometimes outlandish positions.
Darlene Madott • Your lawyer knows you, the backstory, motivators, everything. I can't imagine letting anyone I care about go through the separation experience, including mediation process, unassisted by capable and caring counsel -- whether counsel waits in the wings as informed sounding-board, or participates in the fact finding and document gathering and analysis. As a mediator, a lawyer-assisted mediation can be of great assistance.
Christopher Arnold • Great post John - when I mediate, both parties must be represented, and I strongly advocate for that to be from the start. Not so much about helping the parties carve out positions (as that can negatively reinforce client perception that "the law" or "my rights" is a static, knowable single thing - rather than a range of possible outcomes) but about orienting clients about the general principles underpinning the four main family law issues, namely parenting, property division, child and spousal support. Too much "law" or too heavy a legal hand and creativity and broad possibility is stifled, too little guidance and the mediator may have a tougher time, from a place of neutrality, coaxing people away from extreme thinking towards zones of congruence where settlements may be found . . .