When Mediation Clients should retain Counsel

Involving counsel during the mediation process is a strategy that should be considered and evaluated throughout the mediation process. Counsel can be involved in a mediation through individual sessions with their client before, during or after the mediation process, through conference calls or meetings with the mediator and by attending mediation sessions. 

If independent legal advice is delivered through balanced settlement-minded legal information it is always helpful no matter when it is offered. My experience has been that collaboratively trained counsel are particularly adept at offering helpful settlement advocacy. On the other hand if the independent legal advice involves premature positional and aggressive legal posturing then that is always a hindrance no matter when it is offered.

I always want my clients (mediation or otherwise) to be fully informed about the finances and the legal model before making decisions. This avoids the counter-productive result of back-tracking or ‘reneging’ on early tentative agreements. When someone changes his mind about an issue after he learns what the law says about it, the other spouse always feels that there is bad faith negotiating.

As a lawyer / mediator, I provide legal information in all of my mediations. I go over family law principles with respect to the equalization of net family property and give information with respect to deductions and exclusions. I provide information about the Child Support Guidelines and the Spousal Support Advisory Guidelines. Once we have achieved some level of consensus about the inputs, I will run CSG and SSAG calculations and bring them into the mediation session. I will also prepare preliminary draft Net Family Property Statements. My goal is that neither client is ever surprised by the information they receive from their ILA counsel.

The opposite problem of early positional legal opinions is last minute ‘after the fact’ independent legal advice. When I am the one providing independent legal advice, I never like meeting a client for the first time when the deal is basically ‘fait accompli’ and I am expected to simply ‘rubber-stamp’ it. 

While I don’t insist on counsel being retained prior to the first mediation session, I do encourage clients to retain a lawyer relatively early on in the mediation. This allows the lawyer to be informed and available for assistance between sessions if needed and then by the time the lawyer is giving ILA on the final deal reached, they already have a connection and knowledge of the client.

​Involving counsel throughout a mediation is helpful when counsel are supportive of the process and provide balanced legal opinions. They can provide effective settlement advocacy, which the mediator can work with to help clients resolve difficult problems or solve complex legal issues.