Most of our clients are referred by their lawyer, and many bring their lawyers with them.
But some people do not have lawyers when they start the process. They have chosen mediation because they want to avoid a process that they perceive to be adversarial, or they have already reached some consensus about what they want to do and don’t feel that they need lawyers. Invariably, they want to minimize costs.
Some clients hope that they can avoid lawyers all together.
In our opinion, everyone in any kind of mediation needs a lawyer. In order to negotiate effectively, you should fully understand your rights, obligations and alternatives to a negotiated agreement. In almost all cases, preparation for effective mediation includes having good legal advice.
Fortunately, the practice of family law has evolved over the past 10 years. Few family lawyers are adversarial, and most work very well within the mediation process. Most family lawyers are skilled mediators and negotiators themselves, with many having taken mediation, negotiation or collaborative law training. In our experience, it is always an asset to have your lawyer involved in the mediation.
It is always our preference that the lawyers be at the table. But for many clients, this is unaffordable. Fortunately, most family lawyers are skilled at advising their clients in mediation without having to be present in the room all the time.
Many clients will choose to retain counsel for the mediation but keep them as “advice counsel” until needed for a more intensive role. In many other cases, the lawyers bring their clients to mediation after attempting to resolve the dispute themselves through negotiation or in the litigation process.
Often, lawyers will suggest mediation in lieu of a case or settlement conference at court.
In any of these scenarios, the lawyer plays a critical role in helping define and narrow the issues and explain and analyse disclosure. Lawyers have generally attended many mediations and have a wealth of experience to draw from when creative options are being considered. They often know well what works and what doesn’t, and can help parties realistically evaluate their settlement options. And of course lawyers are essential in providing legal advice.
Whether the role is as advice counsel or advocate in the mediation itself, here are some of the things to discuss with your lawyer before the mediation.
- Why is mediation being considered? What do you hope to gain from it? If you are not clear, your lawyer can help you clarify your goals, and you can help your lawyer understand your needs.
- Clarify what is to be done in mediation and what is not. Should the mediator help the parties complete their financial disclosure, such as going over statements of income and assets and debts; or is this something that should be done by the lawyer’s office? Who will prepare a financial statement and draft net family property statement– the mediator or the lawyer/s? Who will retain valuators and appraisers if required? Who will review all the data and prepare the property division and support calculations, the lawyer/s or the mediator? And who will draft any agreements reached? There are advantages to having the mediator do these things, and disadvantages. Discuss this with your lawyer. And be clear if you want only some issues to be resolved in mediation. You may want your lawyer to negotiate some issues and the mediator to help resolve others.
- Understand the kind of mediator with whom you are working. Some mediators are “evaluative”, meaning they are willing to assess and judge the merits of the parties’ respective positions. These mediators may encourage parties to settle in ways the mediator considers to be fair; or may propose options for settlement. Other mediators will not make proposals for settlement, or will not provide an opinion on the merits of the case. There are positive and negative aspects to each approach to mediation; it is important to understand how each of the parties might respond to the different approaches, so you can select the mediator whose style best suits your needs.
- Discuss with your lawyer any feelings of vulnerability you have. Mediators have different intake and screening processes; discuss this with your lawyer so that you can select the mediator whose process makes you the most comfortable. Remember that the mediator will have the benefit of working with both clients. He or she can see the vulnerabilities and strengths of each party and will be well situated to able to determine how well they balance one another. Lawyers are a disadvantage when assessing a client’s suitability for mediation because they only meet their own client. Make sure you discuss fully your concerns for yourself– and for the other person– if you have any.
- Read the agreement to mediate. Review it with your lawyer. Ask your lawyer to call the mediator if you have any questions about it.
- If you are going to meet the mediator without your lawyer present, find out if your lawyer wants to receive copies of any progress notes or memoranda of understanding from the mediator. It is always better if the mediator sends these notes directly to your lawyer but you will need to give these instructions.
- Remember that, in closed mediation, which is what most mediators do, nothing is final or prejudicial until it is reviewed by counsel. If the lawyers do not attend the mediation, we will not allow any binding agreements to be signed.
- If you are having a problem with any aspect of the mediation, and cannot discuss your concerns with the mediator, let your lawyer know about it. Family lawyers are skilled and experienced with the mediation process and will usually be able to call the mediator and solve the problem.