All mediators recommend (or should recommend) that you get your own individual legal advice as a part of the divorce mediation process.
You may ask why this is necessary since you are mediating your divorce in part to “avoid divorce lawyers”. Won’t hiring separate attorneys defeat the goal of mediation to save costly attorney fees? Isn’t a qualified mediator, who is being paid for “knowing his or her stuff” all the professional advice you need?
Even though mediation is about cooperating to work out financial and parenting issues, each spouse has individual concerns, and legal rights and responsibilities. Mediators are neutral parties and do not give legal advice to either spouse, even though the mediator may be a trained and/or licensed as an attorney. The settlement decisions you make as a part of your divorce should be based on “informed consent”. Working with your own attorney helps to protect you and achieve your mediation goals by:
● Understanding the law and identifying legal issues that may apply to you;
● Having a private place to discuss your concerns and weigh your options;
● Getting support from a legal professional who is “in your corner”;
● Diagnosing how much information is reasonably necessary for you to make your settlement decisions;
● Getting practical feedback on your ideas for settlement and creative suggestions about difficult issues;
● Having the knowledge that an attorney has helped to protect your legal interests by reviewing the final legal settlement agreement before you sign it.
Despite what many people believe, mediation is not only for “friendly” spouses. Couples less prone to uncontrolled conflict are particularly suited for mediation. Couples separated long enough to have survived their “emotional divorce” are usually better able to mediate in a constructive and calmer environment. While some couples who elect to use nonadversarial approaches can act civilly, most people going through divorce are experiencing extreme emotional distress. However angry, fighting, grieving and otherwise emotional people can still share the goals of avoiding the adversarial process and protecting their children from parental conflict and emotional damage from the divorce.
So, you can be consistently “unfriendly” throughout the process and yet avoid adversarial approaches. The more grounded you are with private legal information and advice, the less likely that you will question your settlement decisions later no matter where you and your spouse are on the “friendliness – high conflict” continuum.
Consider your work with an attorney as your investment in feeling confident about some of the most important decisions you will make in your life.
