Can my attorney be present during mediation

Most mediations don't require an attorney, but there are some situations in which you may want to consult a lawyer.

In most mediations, you don't need a lawyer's direct participation. People who are mediating are less likely to need an advocate because they are trying to work together to solve their problem -- not trying to convince a judge or arbitrator of their point of view. Because mediation rules are few and straightforward, people can usually handle the process on their own without too much trouble. If your case involves substantial property or legal rights, however, you may want to consult with a lawyer before the mediation to discuss the legal consequences of possible settlement terms. You may also want to make getting a lawyer's approval a condition of any agreement you make in mediation.

The Right Lawyer

If you're considering having a lawyer help you mediate, you should look for an attorney who truly supports the process. Unfortunately, many lawyers enjoy their role as advocates ("hired guns"), and find it difficult to change gears to focus on helping people work out a compromise solution.

The type of lawyer you choose also depends on whether you want the lawyer to counsel you throughout the mediation or you are only interested in an initial consultation. The lawyer's personality and attitude towards self-help law doesn't make much difference when it comes to legal advice, but it can mean a world of difference if you are mostly interested in having the lawyer coach you on a continuing basis.

If you do need a law coach, you should make it very clear from the first interview that you want to work with a lawyer who understands and supports mediation. This means a lawyer who accepts that mediation sometimes involves compromise and that what you settle for in mediation can be influenced by, but should not be determined only by, what the lawyer believes a judge or jury might give. For example, you might tell a potential lawyer that you want him or her to help you prepare for your mediation, but you don't expect him or her to come to the actual sessions. Also, you might also ask the lawyer to be available to review any written settlement agreement before you sign it.

Questions to Ask the Lawyer Before Mediation

In an age when many lawyers are underemployed, there is always the risk that a lawyer who wants your business will say that "of course" he or she supports mediation, when in fact the lawyer has a fairly negative attitude. To probe a little deeper, ask the following questions:

Has the lawyer ever worked with clients going through mediation?

If so, what did the lawyer think of the process? Was it successful for the client? The way lawyers talk about their prior experiences in mediation often reveals whether they really support and respect the process or think it's a waste of time. For example, some lawyers who have handled a few mediated cases that did not settle may be negative about the result ("I told my client it wouldn't work, but he wouldn't listen"). Fortunately, many other lawyers come out of mediation with an understanding and respect for the process, regardless of whether a particular case settled.

Has the lawyer been trained in mediation?

There are two types of "mediation training" that many lawyers take these days. One is training to be an actual mediator; the other is training in how to represent clients effectively in the course of a mediation. Both show an interest in mediation but, of the two, you should probably gravitate toward a lawyer who has taken the second type of training: It suggests a more serious professional desire to help clients through the mediation process. This is particularly true if the training to be a mediator was very limited and the lawyer didn't have to pay for it.

When you hire a lawyer to help you with a mediation, be sure you both understand clearly how fees will be computed. Don't expect any special price break because you are mediating. Most lawyers will charge you their normal hourly rate. The key is to define, in advance, when and how the lawyer will help you. For example, if the lawyer says it will take three hours to advise you on the legal aspects of your case in advance and another three hours to review and discuss any proposed written settlement, you'll know that your bill will be six times the lawyer's hourly fee, unless, of course, you call the lawyer during the mediation and ask for additional advice.

For More Information

To learn more about mediation, including whether and how to work with an attorney, see Mediate, Don't Litigate: Strategies for Successful Mediation, by Peter Lovenheim and Lisa Guerin (Nolo).

A: Mediations are not all the same, but most of them follow a general format that is somewhat predictable. If your attorney was involved in choosing the mediator, which is usually the case, he or she is probably familiar with the mediator’s style, and can walk you through what to expect.

Most mediations are somewhat informal. Ideally, the mediator will have at least two, preferably three, rooms available. When I serve as a mediator, I like to have a general session with both parties and their attorneys together in the same room. However, if you are not comfortable being in the same room with your spouse and his or her attorney, let your attorney know that. There are of course advantages to all being in the same room, the most important of which is that it is most time efficient. Requiring the mediator to shuttle back and forth between rooms can be rather time consuming. You will probably be required to sign a mediation agreement in advance which sets out general ground rules and the fee structure. If you have not seen this prior to the mediation, ask your attorney to send it to you. You may be required to pay a retainer up front before starting mediation.

In the initial session, the mediator will probably set out ground rules, the most important of which is that the parties are expected to be civil with one another and not interrupt when another person is talking. The mediator will also discuss confidentiality concerns. The court rules provide that a mediator cannot be called as a witness at trial, and that mediation proceedings are confidential. In other words, what is discussed at mediation cannot be used as evidence at trial.

Most mediators request that the attorneys present a summary of the case prior to mediation. It is helpful to provide the mediator with copies of any temporary orders and a spreadsheet of assets and liabilities prior to starting mediation. If your attorney intends to submit one, ask to review it before it is filed with the mediator. If you are involved in a child custody case, the mediator should see the custody evaluation, and any other materials regarding the children. If parenting time is at issue, provide your attorney with a proposed parenting time schedule. If you have debts, make sure you are on top of just what is owing and by whom. It is a good idea to run a credit report so you know exactly what your liabilities are. This includes credit cards, car payments, and mortgages. If you can, run bluebook value on all vehicles in advance of mediation so you have an idea what they are worth.

If your attorney is doing his or her job properly, you will see that he or she wears a different hat at mediation than in the courtroom. The goal of mediation is dispute resolution, not winning. You will be asked to concede certain things that you might not want to give up if the case ends up going to trial. The process of mediation is about compromise, and in the end, if mediation is successful, both parties will feel like they have given up some things and met in the middle. Don’t expect your attorney to do all of the talking. Mediation should be centered on the parties, not the attorneys. This is not a time to raise attacks against the other party's character, parenting style or financial habits. It is instead an opportunity to look for solutions to the conflict.

After explaining the ground rules and answering any questions the parties may have regarding the general process, most mediators like to spend time with the parties individually, sometimes in private, to hear their concerns and get a general idea of their relative positions. A good mediator will seize upon the opportunity to identify those issues that the parties can agree on. Issues such as division of personal property can often be readily resolved if the parties appear at mediation with a detailed personal property spreadsheet and proposed division.

Some mediators like to tackle the easy issues first so that the participants can feel a sense of progress and working together.

At first you may feel like you are not getting anywhere. But if you persist in the process, you may find that you first begin to agree on small things, and eventually on the larger ones. Once you begin to reach agreement on any issues, the mediator will begin drafting a mediation settlement agreement, which may address all the issues in your case, or in the event you do not agree on everything, just those issues on which you have reached agreement. Remember, once you sign a mediation agreement, it is a binding legal document. If you do not feel comfortable signing the agreement at mediation, or if you feel pressured for time, ask your attorney if you can take the agreement home and sleep on it for a day or two. Once an agreement is signed, it is difficult to convince the court to set it aside. Because mediation is sometimes a lengthy process that can last for a full day or longer, parties are usually tired and stressed by the end of the day. If you are feeling overly stressed, ask your attorney to allow you some time to mull over the agreement before you sign it.

If you are successful in reaching a complete resolution of all issues in your case, the attorneys will then work together to put the agreement into a final judgment of divorce. If you are successful in resolving only some of the issues, that can also be a good thing, because it can narrow the scope of issues to be tried by the court and allow you to focus on the real issues in dispute. At the very least, even if mediation does not resolve all of the issues, it allows the parties to explore one another's positions and can be an invaluable exercise in evaluating the issues and preparing for trial.

For more information about mediation, please see the Mediation section of our website.

For more information about the mediation process, please see the Facilitative Mediation Process section of our website.

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