AN ATTORNEY COACHING YOU THROUGH THE MEDIATION CAN BE MOST BENEFICIAL
The title of the children’s book It Takes a Village could apply just as easily to divorce. Psychologists, social workers and financial advisors all have perspectives that may be useful to divorcing spouses, and many practitioners in these disciplines have successful businesses as divorce coaches. These professionals can provide needed guidance and support on issues for which they have been trained. But they cannot provide legal advice, other than maybe providing some information on the various process options (ie. mediation, collaboration, or litigation) to get separated or divorced. In the mediation process, a couple meets with a trained mediator over the course of several meetings in an effort to reach to achieve a separation agreement, or, to work towards modifying a previously signed separation agreement or divorce, by way of example only. But most often neither spouse has a lawyer with them by their side in the mediation. Can a spouse in mediation use a lawyer as a coach in that process?
Most people think of lawyers as adversarial only. If a divorce is acrimonious you may hear people stating, or giving advice to the divorcing spouse to find the “meanest matrimonial lawyer; a “shark”; “the most aggressive lawyer in town.” This is actually a stereotype, one that’s largely outdated. Increasingly couples are looking for more financially and emotionally responsible divorce process options such as mediation or collaboration to achieve a divorce. In the mediation process, divorcing spouses are starting to look for a lawyer/coach who sees the situation objectively, knows the law and can give advice without the compulsion to demolish your spouse or take every nickel off the table.
What does a lawyer as a mediation coach do? There are no black and white rules. It can be an evolving role that may start off one way, and grow into something different, and should be discussed and agreed upon between the lawyer and client. A lawyer as a mediation coach can be involved with a client from before the mediation process even begins, or can become involved at any point in the mediation process. A spouse can work with their lawyer coach in between each and every mediation session and develop a plan for that spouse to go into the next mediation session with, or, only meet when an issue is raised in the mediation that does not seem to be getting resolved. For example, a couple has reached agreement on a parenting plan, division of their household goods and who will pay for medical insurance coverage, but they’re stuck on division of a pension or a 401k and what to do with their house. The couple may not actually be stuck because they disagree; but it may be that they are stuck because they don’t know if what they’re asking for, or what their spouse is proposing, is reasonable. They may experience diminished trust in each other and may be concerned they’ll be taken advantage of. Mediation has enabled them to agree on many things but progress has slowed because one or both parties, feeling uncertain, find themselves hesitant to discuss the few remaining issues. The right lawyer as a mediation coach can jar these situations loose by providing knowledge and perspective.
To optimize a lawyer as your divorce coach, it works best to have the lawyer on board during all or most of the mediation. This does not mean your lawyer/coach needs to accompany you to every mediation session. Many mediators do not include the lawyers in the actual mediation session unless the mediator determines that it is necessary. Most times, lawyer/coaches are consulted between mediation sessions if a divorcing spouse has a legal question. Good mediators encourage this (though many mediators are lawyers, they would be ethically compromised by giving legal advice to either party in mediation). Therefore, if a legal question arises in the course of mediation, one or both parties may wish to check with a lawyer/coach between sessions.
One or both parties in divorce mediation may be coached by a lawyer. Lawyers who excel in this role are collaborative without being overly concessive, and have a grasp of the overall settlement picture. Experience in the role also counts for a lot. Lawyers whose experience is exclusively as an adversary or litigator may not adjust readily to representing or coaching clients who choose mediation for their divorce. A lawyer/coach must recognize that a client may be well satisfied without cleaning the spouse’s clock, so to speak; divorce settlement need not be punishing to work well.
If you are involved in the mediation process, or are considering mediation as a process option to get divorced, please contact our office to schedule a consultation with me. I have coached many clients through the mediation process in a way that has been successful and most beneficial to my client.