Attorneys at the Mediation Table?

June 30, 2017

Like Rachel Alexander, generally, in my practice, divorce mediations are intimate, including only the parties and the mediator. This often adds to the sense of confidentiality and privacy. It works well for many clients who want to speak candidly about difficult issues in a safe, unbiased environment.

 

Sometimes, however, for a multitude of reasons, clients wish to include their attorneys in sessions. A client may feel that by having his attorney present, his rights are better protected or that a power imbalance between the parties is being equalized.

 

While there are indisputable benefits to including attorneys throughout the process, there are some downsides of which clients should be mindful. When litigation attorneys, unfriendly to and/or untrained in mediation, enter the process, the mediation can morph into a mini litigation.

 

Conversely, a mediator is trained to look at the whole family and the fallout of an acrimonious, imbalanced settlement. The attorney, in his zealous advocacy, might focus on micro “wins” rather than the macro, long-term big win: a post-divorce functional family and a settlement agreement that will actually be adhered to by both parties. The mediator works from a fundamental, guiding principle that any sustainable solution must include the interests of both parties affected by its terms. If one member of the family “loses,” no family member can escape the ramifications over time.

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