Should We See Lawyers Before Or After The Mediation?

June 18th, 2013 by Meliha Waddell

My spouse and I want to resolve the issues in our divorce through family mediation; should we see lawyers before or after the mediation?

Family mediation is an excellent way to resolve the legal issues that come up after separation. It avoids the stress, acrimony and high costs of going to Family Court. Mediation can also allow separated spouses to work out the general terms to put in a separation agreement quite quickly. However, as discussed in another blog, each spouse must have a lawyer at the time they sign the separation agreement if they want that agreement to be enforceable; that is, if they want to ensure the other spouse has to obey the terms of the agreement. Although some people may think it sounds contrary to the idea of mediation to hire a lawyer right from the beginning, both spouse talking to a good family lawyer right at the start is usually what is best for everyone.

People go to mediation because they want to resolve things quickly and on an amicable basis. Some people are under the mistaken belief that speaking to a lawyer right from the beginning will make that quick and amicable settlement impossible. They are worried that the lawyers will raise lots of issues and point out problems with the spouses plans, or the lawyers may encourage their client to take a harder line position to get more, if the lawyers do not actually try to create fights in the hope that the spouses will spend more money on the lawyers to resolve issues. That is a more unfortunate and inaccurate perception. Good family lawyers are focused on getting matters resolved for their client, on terms that are acceptable to their client, while causing their client as little distress and discomfort as possible. Good family lawyers have lots of clients, and often people are waiting to see them, so they don’t need to make things difficult or make matters take longer that is necessary. Good family lawyers focus on getting their clients to a good resolution, not on the fight. So if what you want is to resolve matters with your spouse in a quick and sensible manner, you can find a lawyer that will help you do that. A good place to start is the websites of collaborative practice organization. Here are the links to Toronto Collaborative Practice and York Collaborative Practice. Even if you do not want to use the collaborative practice procedure because you would rather do mediation or negotiation, the list of lawyers on a collaborative practice website is useful because those lawyers are interested, and trained, in “interest based negotiation”, which means they know how to get clients what they really want, or need, without a fight in court.

Having a family lawyer assist you even before you start mediation has several important advantages. First, family law is complex and it is extremely unlikely that you will know how the law applies to your particular situation without speaking to a family lawyer. If you read any book on how to settle a matter successfully in mediation, then you will learn the importance of knowing your settlement range. Your settlement range is the range of possible outcomes that goes from your worst alternative to your best alternative. If you see a family lawyer before you go to mediation, then you will have some idea of what the range of fair settlement could be before going to mediation. This prevents the unfortunate circumstance where you go to mediation, and then one spouse or the other sees a lawyer who tells him or her that the settlement is unfair under the law and not something that a court would ever order. When that happens, the settlement breaks down and the parties either have to start negotiating or mediation over from scratch or they end up in court, which is what they were trying to avoid.

A second advantage of having lawyers involved right from the beginning is related to my comments above about finding out from a lawyer that the mediated settlement is not a good one. It may not just be that the settlement is one that is unfair to one separated spouse, it is also possible that the settlement may be one that is not allowed under the law. For example, it is only in exceptional, and very specific, circumstance that a court will allow parents to stray away from the Child Support Guidelines when they are resolving child support. If you and your spouse agreed to resolve child support in a manner that is not consistent with the Child Support Guidelines, you may find that your mediated settlement is simply illegal and will be thrown out by a judge. (Listen to this podcast, or watch this video for more about these child support issues.)

A third reason for having a lawyer involved during the mediation, and even at the mediation, is that your lawyer can let you know whether what you want or what you are discussing is reasonable. Separations are very difficult and emotional times for you and your spouse. People can have a very hard time separating those emotions from their reasoning skills – and often they are not even aware of that. In addition, sometimes a spouse can feel intimidated, scared, or perhaps overcome with guilt in the presence of the other spouse. For all of these reasons, it is very helpful to have the support of someone who can act as a check to those feelings and provide advice. Family members and friends are often not a good choice because they can be just as emotionally wrapped up in what is going on as the separated spouse. (Hear a judge say exactly that.) However, good family lawyers, even the most emotionally supportive ones, remain professional in all their files (this is their job) and do not become emotionally involved. A good family lawyer will let you know whether, even if what you are feeling is normal, if it is reasonable as well. A good family lawyer will not only keep you on track to a reasonable and appropriate settlement, but will also be able to advise you on the best way to get to the settlement you want (lawyers are professional negotiators).

Some family mediators will only do family mediation if both parties have lawyers. The reason for this is because the lawyers help keep their clients focussed, on track, and negotiate in a productive fashion, during the mediation. In addition, having the lawyers involved makes sure the mediated settlement will last and not get into trouble when the spouses discuss how the law applies to their situation for the purposes of formalizing the separation agreement.

It is very important to remember that family mediators, even ones who are trained as lawyers, cannot act as lawyers while mediating. Their role is very different. The role of a mediator is to get both parties to a settlement, not provide legal advice to either party about the merits of that settlement. A family mediator will not ensure that an agreement is fair to both parties, as the mediator’s job is only to get the parties to an agreement and rely on the parties to know whether that agreement is a good one or bad one for them.
For all these reasons, it is best to hire a family lawyer before starting a family mediation, and it is often helpful to have the family lawyer at the family mediation. Having the family lawyer afterwards can actually lead to the problems that you are trying to avoid by not hiring a lawyer at the beginning.

For further information on family law or assistance in regards to family mediation in Ontario, please contact family Toronto family lawyer John Schuman. For answers to questions like “should we see lawyers before or after the mediation?“, please visit our family law blogs page.

John Schuman is the head of the Family Law Group at Devry Smith Frank LLP, a full service law firm located near Eglinton and the Don Valley Parkway in Toronto. Learn more about John! Call him at 416-446-5080 or 416-446-5847 or email Listen to the Ontario Family Law Podcast!

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