One of the great appeals of mediation over collaborative practice or litigation is that the two parties share the fee of one mediator. It is for many people an inexpensive process when compared to the alternatives.
But many clients make the mistake of assuming that they do not need a lawyer. Or that they do not need to bring their lawyer to the mediation.
It is almost always good to begin the mediation process with just clients and mediator. It gives the mediator a chance to help focus both parties on what they need to make informed decisions, how to get them that information, and what they both want and need to get out of the process.
Separation is an intensely emotional and conflictual experience for most. In the early phases of mediation, it can be quite effective for the parties and the mediator to work through these difficult issues.
We find that it is helpful for the parties and the mediator alone to deal with issues of trust; financial disclosure; emotional needs of the parties and the children; parenting options and concerns; budgets and financial needs; options for valuing assets; and identification of the real areas of disagreement.
Often, the parties can continue the mediation without their lawyers at the table, taking their final settlement proposals to their lawyers for advice closer to the end of the process.
But many separation negotiations involve complex facts and difficult legal issues. The mediator cannot provide legal advice. It can be frustrating for the parties and the mediator to have to stop the mediation so that the clients can go and meet with their lawyers.
And the worst outcome for anyone is if the parties think they have reached a tentative settlement in mediation, only to find that their lawyers feel something important was overlooked. This can lead to delay and unnecessary expense, not to mention emotional frustration. Far better to have the lawyers at the table and avoid this risk.
Family lawyers have enormous experience with circumstances that may seem unique to the parties. And almost all have taken mediation or collaborative negotiation training.
That experience and training makes lawyers a great asset in the mediation process. It is often a good investment to have both lawyers at the table when the time comes to generate options for resolving strong differences of opinion, or interests that seem to be polar opposites.
Another great way to maximize legal dollars in mediation is to have both lawyers attend the final meeting, for the purpose of ironing out the remaining details and getting an agreement signed. This avoids the common problem of the parties leaving the last meeting believing they have a deal, only to find it unravel in the negotiation of the details.
There are many mediations where the parties and mediator are well able to work through the issues without having lawyers present. But, whenever possible, it is our experience that the process works better if the lawyers are at the table.