Month June

  • Mediation: Why do I still need an Attorney?

    June 21, 2011

    Many people are under the mistaken impression that, if they use a mediator to help them resolve their divorce issues, they won’t need an attorney.  But the role of the mediator is not the same as the role of the attorney.

    The mediator is a neutral professional who helps the parties facilitate their agreement.  Often the divorce mediator is an attorney.  But, the mediator does not give specific legal advice to either party.  The mediator must remain neutral at all times.  He or she can suggest alternatives and options, but cannot tell you which choices are best for you.  For that, you need the advice of an attorney.  Your attorney will explain your legal rights and advise you how your case would be likely to turn out if you went to court.  Armed with that information, you are better prepared to negotiate for yourself at the mediation table.

    Although having your own attorney is not mandatory in mediation, most mediators will encourage you  — and perhaps insist — that you consult an attorney at least once during the process.  Otherwise, there is the risk that you will concede on issues without recognizing the consequences.  There is even the possibility that your Agreement may be so one-sided as to not stand up to a future court challenge. 

    Many mediation clients use the internet as a substitute for a consult with an attorney.  They see this as a cost-saving measure.  But, if you are not knowledgeable about your legal rights, you could lose out financially much more than the cost of a consult.  Attorneys are also necessary to review and finalize the written Agreement and to draft and file the Complaint for Divorce.  The mediator is not permitted to participate in court proceedings or to file court documents.  Some parties mistakenly think the mediator can substitute as an attorney for both parties, but this is not the case.

    The role of the attorney in a mediated case is much more limited than in a litigated case.  Therefore, the cost of the attorney is also much lower.  Statistics have shown that the final cost of a mediated divorce, including the fees charged by the mediator and both attorneys, is likely to be approximately 1/3 of the cost of a litigated divorce.  In addition, the parties are usually much happier with the outcome since they have participated fully in negotiating their Agreement.  And, when issues arise after the divorce – concerning parenting time, child support, college and modification of certain support obligations — parties who have mediated the underlying divorce, often are able to return to the mediation table to resolve these issues as well.  As a result, over time, they learn to negotiate with each other and, in the process, they save thousands of dollars. 

    Mediation works especially well for spouses who take the time to meet with a lawyer during the process to understand their legal rights.  The Agreement is also far less likely to fall apart later on since both parties have gone through the process as well-informed participants.

    For more information concerning mediation, contact Risa A. Kleiner, Esq. at 609.951.2222.

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