You Should Be Represented By Your Own Lawyer In Mediation
Q: “I am getting a divorce. Although my spouse and I aren’t in love anymore, we’re not stupid and we don’t want to waste money on lawyers. Is it a good idea to use a mediation lawyer to represent us both?”
A: Yes, if you don’t have much in the way of assets and agree on everything. Emphatically NO, if you have substantial assets, are not sure about how to divide either your community property or your children’s time or if you own a business. In any of those situations you should have a lawyer.
Having a lawyer does not mean you have will have to fight about everything. The key is to ensure that you find a lawyer who will keep your interests in keeping costs down in mind. Understand and promote the fact that you are trying to negotiate in good faith in mind. Why do you need a lawyer if you agree on most issues? Because you do not have the skill set or legal experience to understand the legal ramifications of any potential agreement you reach.
Remember the mediator lawyer does not work for you. He or she wants to settle your case. The more successful mediations she has, the better the mediator’s reputation is, right? You need someone to explain what happens based on your proposed marital settlement agreement. What are the tax ramifications of paying alimony? Are they the same as paying child support? If you have a personal injury settlement is that community or separate property. What interest does a spouse have in a professional practice or in a business owned by the other spouse? What about if the own and work in the business together? What if there are other partners in the business?
Have you ever bought a house? How many? More than one? I will bet if you bought one or two houses you used a real estate broker. If you are house flipper or are in the real estate business then maybe you are a broker/salesperson or maybe you do it without one. But for the average seller or buyer using a broker is the norm. Why is that? The reason people use brokers is that selling or buying a house is unfamiliar and serious business. The seller’s broker owes a fiduciary duty to the seller to look after her best interest. Similarly, the buyer’s broker owes a fiduciary duty to the buyer to look after his best interest. These fiduciary obligations are limited, but the analogy is accurate enough. Your lawyer owes you a fiduciary duty–to help you achieve your goals, to listen, to refrain from needlessly creating problems in the process.
People should use lawyers when they are engaged in mediation for the same reasons they use brokers. It doesn’t matter what type of mediation—divorce mediation, business disputes, any legal mediation. Without an attorney to advise you of the legal ramifications of the deal you are being offered or are offering you are essentially negotiating blind.