Should You Go to Mediation With or Without your Attorney?

With some exceptions, almost all divorce cases in Minnesota will be required to participate in some form of alternative dispute resolution, such as mediation, to resolve legal issues.  In a divorce, couples often struggle to come to an agreement on issues such as spousal support, division of assets or debt, or child custody and support.  Mediation gives parties the opportunity to work together to overcome whatever legal disputes they may be facing.  In our opinion, it is almost always better to attend mediation with your attorney present.  This article outlines several of the benefits and highlights particular cases that may be best handled with the assistance of legal counsel. 

Parties often find it useful to consult with an attorney before the mediation begins.  An experienced divorce attorney can help you weigh your options and understand your legal rights and the consequences of a settlement.  She can assist you in determining the best form of alternative dispute revolution given your situation.  An experienced divorce attorney will assist you in selecting the mediation that is right for your case.  All mediators have different styles.  While a certain mediation style may be appropriate for one family it might not work well for your family.  In preparation for the mediation session, she can also explain the mediation process and what will happen if a settlement is reached or, in the alternative, if you are not able to come to an agreement.

The mediator's role in the session is to be neutral.  Their job is to assist the parties in reaching an agreement.  They are not allowed to advocate for either party and cannot advise you if the agreement you have reached is in your best interests.  Your attorney can advocate for you during the session.  They will know if the agreements being discussed are in your best interests or not.  They can help move the mediation along by assisting with creating options and ideas for settlement.  It may be wise to consult with him or her periodically about legal issues that come up along the way.  At any time during the mediation, you can have a private meeting with your attorney if you need clarification or further advice.  An experienced attorney may be able to give you his or her opinion as to how an issue might be decided by a judge if the case were to go to court.  With all the relevant information, the parties are more likely to come to terms they can all agree upon. 

Its better to do things right the first time.  There are countless times that parties will reach an agreement at mediation with the condition that they first go back and discuss the agreement with their attorney.  Often times, the agreement reached falls apart because someone did not fully understand the legal ramifications of their agreement.  However, once you have committed to an agreement, it can create mistrust and hard feelings if you back out of the agreement after discussing it with your attorney.  This may make future settlement negotiations much more difficult.

Parties may also choose to have an attorney present during the mediation proceedings in situations in which there is an unequal balance of power, for example, in a divorce settlement in which one spouse is easily intimidated by the other or in which one has a limited understanding of the family’s financial situation.  Further, if you are dealing with particularly emotional issues that may cloud your judgment, it may be advisable to have an objective advocate on your side to assist you in making sound and rational decisions and to help you protect your rights. 

At Mundahl Law, we have extensive experience helping clients resolve a range of legal issues through mediation.  We can help you determine if mediation is right for you and can guide you through the mediation process to achieve a positive outcome for you and your family.  Contact us to learn more.

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