Generally, in my practice, divorce mediations are intimate, including only the parties and the mediator. This often adds to the sense of confidentiality and privacy. It works well for many clients who want to speak candidly about difficult issues in a safe, unbiased environment.
Sometimes, however, for a multitude of reasons, clients wish to include their attorneys in sessions. A client may feel that by having his attorney present, his rights are better protected or that a power imbalance between the parties is being equalized.
Having attorneys in a mediation can be instrumental and necessary. Attorneys offer legal advice, share their experience before various judges, and appreciate how relevant legal issues are currently being decided in our courts. An attorney can help reality test; they have been in the litigation trenches and can speak to the trends, uncertainty, time and expense involved in trial. This information can be helpful in shedding light on what a litigated process and outcome could be, refining the clients’ understanding of their likelihood to prevail on certain issues and not others.
While there are indisputable benefits to including attorneys throughout the process, there are some downsides of which clients should be mindful. When litigation attorneys, unfriendly to and/or untrained in mediation, enter the process, the mediation can morph into a mini litigation.
Attorneys, being people, bring with them their biases, preferences, styles and personalities, in addition to their training as adversaries. Any of this can actually delay, even derail, the process of settlement. An attorney might have a personality where he is compelled to pick over every minor issue, like a kid picking at a scab on her knee while her mother admonishes her that she’s making a scar. A client might be saying, “Yes, I’m fine with this particular issue, let’s move on,” but the attorney replies: “Wait just one minute! Is this really fine with you? That might be fine with you, but it’s not fine with me.” (exaggerated for emphasis)
An attorney is generally trained to fight for a client, not a family, not its future.
Conversely, a mediator is trained to look at the whole family and the fallout of an acrimonious, imbalanced settlement. The attorney, in his zealous advocacy, might focus on micro “wins” rather than the macro, long-term big win: a post-divorce functional family and a settlement agreement that will actually be adhered to by both parties. The mediator works from a fundamental, guiding principle that any sustainable solution must include the interests of both parties affected by its terms. If one member of the family “loses,” no family member can escape the ramifications over time.
It shouldn’t go unmentioned that there are other professionals who may be coming to the mediation table in addition to attorneys.
Financial Advisors/Accountants/Actuaries for Pension Valuations, Etc.
Having the couple’s financial advisors as part of the mediation can be quite helpful. Mediators aren’t necessarily money managers, so including the expert who is actually managing the parties’ funds or can advise how to separate their assets equitably is helpful.
When clients are working with therapists, particularly as a family, having the family therapist involved, usually by phone, can be very appropriate. The therapist’s input can help inform such aspects of an agreement as the parenting plan, communication boundaries between parties, involvement of third parties (boyfriends, girlfriends) with the children.
So when we say, “Look who’s coming to the mediation table,” it can be almost anybody that the parties feel is reasonably necessary.
I am open to include anyone in mediation whom the clients determine is helpful, relevant and necessary. When other professionals can further the creation of a fair, stable and comprehensive agreement, they are most welcome at my table!