Nolo's Essential Guide to Divorce - Emily Doskow [45]
Your consulting attorney may attend mediation with you if the mediator requests it unlikely, but possible if things are really at a stalemate-or if you want the support and expertise, but usually they stay in the background. Assuming the consulting attorney isn't involved in the mediation, you'll check in between mediation sessions to talk about the negotiations and get advice about legal questions and the proposals that you are considering. The lawyer will help you negotiate, do what you can to get the most out of the mediation process, and make the best decisions you can. In essence, a lawyer coaches you through the mediation.
Choose a consulting attorney early, before your mediation process is underway. Your best bet is to meet with someone before you go to your first mediation session, so that you can get advice about your rights and figure out your priorities before you go in.
Your consulting attorney needs to have a positive attitude about mediation. You need a lawyer who's willing to act in your best interest and be your advocate by explaining your rights to you. But your lawyer must also help you decide where to compromise and what kind of negotiated settlement will work best for you and your family.
Many lawyer-mediators also work as consulting attorneys, so you can use the same resources listed in "Choosing a Mediator," above, to help you find one. Or you can use the steps outlined in Chapter 16. If some of your prospective consulting attorneys aren't also mediators, be sure to ask for their opinions about mediation's chances for success and how many of their divorce cases settle through mediation. The answers you hear may be very illuminating. For example, if a lawyer you interview assures you that mediation can work only in a few types of cases, or that people come out of mediation with less than if they went to court and fought, you should probably think twice about using this person as a consulting attorney. A lawyer who is determined to fight for everything you might be legally entitled to, and who doesn't want to compromise, is not a good consulting lawyer.
In most cases, the consulting attorney shouldn't ask for a large retainer (as do some lawyers who represent people through the whole divorce process). It's reasonable to pay for a few hours of work up front, but after that it should be a pay-as-you-go proposition.
Where the Law Comes In
In mediation, you and your spouse are free to work things out however you want to. You don't have to do exactly what a judge would do. You may have very good reasons for doing something different. For example, perhaps you are willing to give up a percentage of support to which you would otherwise be entitled in exchange for your spouse's willingness to stay on the loan for your house, which you can't afford to live in otherwise.
But it's often helpful to know what decision a judge is likely to make in a given situation, and your mediator or consulting lawyer can give you that information. Likewise, most states have guidelines for things like child support, and it's important to know how those calculations would come out in your situation.
The Mediation Process
There are as many ways of mediating as there are mediators-because it's such a personal process, the mediator's personality is an important factor. But all mediations tend to take a similar path in terms of procedure. Here's the nutshell version:
• The mediator, or an assistant, will usually speak briefly with each of you before the first meeting.
• At the initial session the mediator will explain the process, and each of you will have a chance to speak about your perspective and your goals. Then you'll begin discussing specifics.
• You'll have as many subsequent meetings as you need to work through all the disputed issues. Divorce mediation works best in multiple sessions of a few hours each, giving you time to gather information and