Do You Need a Consulting Attorney in Divorce Mediation?

Do You Need a Consulting Attorney in Divorce Mediation? by Susan Ingram

{3:12 minutes to read}

I just had a prospective client call me (I’ll call her Kate, and her husband Doug) to ask about divorce mediation. She told me I was highly recommended by another client of mine, and that she and her husband really wanted to mediate their divorce, but that she needed to consult with a divorce attorney first. When I asked why she felt that way, she replied, “All of my friends tell me I need to see a divorce attorney to know what my rights are.”

First, let me say that friends, family, neighbors, etc. are NOT good sources for advice on this subject. Period! They may be well intentioned, but there’s no way they have the expertise or knowledge of the specific facts to give you good advice.

As I asked Kate more questions to obtain the basic information for my phone intake, I learned that she and Doug have a short marriage of only 2 years, and don’t have any children. They rent their apartment and thus don’t own any real property, and they both work full-time at about the same salary level. It seemed pretty straightforward to me, and indeed, Kate herself said it would not be a complicated divorce.

As we spoke further, I realized that Kate didn’t know that a divorce mediator must, and will, give a couple information about the law. For example, I would explain what “equitable distribution” of property means in New York State and what specific factors are taken into consideration under the law when determining how to divide property. If they had children, I would discuss:

  • Child support
  • The formula applied in New York
  • What the law says about recalculating the amount of support going forward

I also explained to Kate that, in my role as a mediator working in a neutral capacity with both parties, I could not offer separate legal advice to either one of them. That would fall within the realm of a consulting attorney.

Appreciating this distinction once I explained it, Kate said she felt comfortable starting the mediation process and deciding later on whether she wanted to see a consulting attorney.

In most of my mediations, I leave the choice of whether or not to hire a consulting attorney to each of my clients. However, there may be some instances, especially where there are complicated issues to resolve, in which I may strongly recommend that my clients retain a consulting attorney. Ultimately, the choice is still theirs.

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