The short answer is yes, you can use a lawyer and a mediator at the same time.
Many clients come to family mediation after they have already tried lawyers, spent much more time and money than they expected, and are no further ahead. Lawyers themselves often send high conflict clients to mediator because they’ve exhausted their finances and reached a stalemate within the legal system. Even the best family lawyers are still working within a system that is extremely costly, and doesn’t allow for conflict resolution or quick results. Consulting a lawyer while in the mediation process offers the best of both worlds: the assurance and legal advice of a lawyer combined with the efficiency, lower cost, and conflict resolution of a mediator.
How can you use both a lawyer and a mediator?
It’s important to take some time to consider your situation and your needs when choosing how to proceed to negotiate your separation. I see many clients that jump right into retaining a lawyer before realizing that there are other options. Here’s a brief overview of the ways you can use a lawyer and a mediator:
Consult a lawyer as needed
If you’ve already retained a lawyer you can instruct them that you intend to settle some or all matters with a mediator, but will consult the lawyer for legal advice along the way. You’re then free to consult the lawyer as much as you’d like throughout the mediation process, but the lawyer is no longer communicating on your behalf. This will dramatically lower your legal fees and speed up the process immensely. You may choose to check in with the lawyer often, or provide them with the written mediated agreement to review at the end of the process. As a mediator, I always welcome and encourage clients to obtain legal advice and am available to speak with their lawyers as requested.
Lawyer Assisted Mediation
Sometimes clients want the efficiency of the mediation process but want more immediate and constant support from their lawyer to inform them of their legal rights. They prefer to have a lawyer continually advising them and even negotiating on their behalf. Clients can attend mediation with their counsel present, who can speak with me directly, advise their client, and assist in their negotiating. While not common, lawyer assisted mediation can be helpful and necessary for complicated files where different settlement options are being negotiated. Having the lawyers present can allow the parties to confidently negotiate and agree to settlement options right in a session rather than having to rebook appointments after they’ve considered options and obtained legal advice.
Use Mediation for Specific Matters
You can use a mediator to assist in your entire settlement, or use mediation to settle isolated matters on which you can’t agree. For example, clients may be happy to have their lawyers work on the financial aspects of their settlement, but come to mediation to agree to a detailed parenting plan. Mediation allows for efficient discussions on complex topics which isn’t possible between lawyers. In mediation you can exchange ideas, consider different offers and options, and brainstorm solutions. You’ll be able to communicate concerns, ask questions, and discuss matters back and forth in real time. If clients use mediation for specific issues then the mediator provides a mediation report of the results for the lawyers to include in the final agreement. Using mediation in this way can dramatically reduce the time you’ll need to spend with lawyers, and move you to a complete settlement quickly.
If you’re unsure if mediation will work for your situation it’s always an option to trial it for a few hours of time. Either party is always free to exit the mediation process at any time if they feel it’s unproductive. It’s very unlikely that mediation is going to make a situation any worse, and with the cost being a fraction of lawyers fees even some small agreements reached can be very valuable to move the process along. When clients are unsure if mediation will work for them I suggest that they choose to trial it with one specific issue to see how it works. From there they can slowly expand the issues as both parties feel comfortable.
It’s important to remember that the professionals work for you in your separation. Not the other way around. Mediators and lawyers should listen to your needs and concerns and tailor their services accordingly. As a mediator I always encourage clients to get legal advice, and it is always their decision to stay in the mediation process rather than using lawyers to communicate. I work with many lawyers that see the value of mediation for their clients and encourage them to try it as a way to reach a settlement. Similarly, your lawyer shouldn’t discourage you from using mediation unless they feel believe you absolutely need legal protection that can be obtained within the courts. A good lawyer is open and encouraging of alternative dispute resolution.