The Role of Lawyers in Family Mediation

When families meet with me and wish to use Mediation to resolve their issues relating to their separation and divorce, they often ask whether they need to have a lawyer as well, or if I can finalise everything (being that I am a lawyer and a mediator).

Often clients want to use mediation instead of lawyers. I remind them that my role as mediator is to help them to (1) negotiate and (2) resolve their conflict and post-separation issues. Sometimes when clients come in with most of their resolution in mind, I will help to ensure that the right level of detail has been considered. In the end, if there are property division issues and they are Alberta married or Saskatchewan spouses (married or living together 24 months), then they will need “independent legal advice” from a lawyer outside of my firm to sign off on their Separation Agreement. This “sign off” may be one appointment, or it may be a series of appointments. If your issues only relate to parenting, you could sign off on your own agreement without a lawyer’s signature, but it is always recommended to have an independent lawyer review it to ensure that you understand your rights and obligations under the law before finalising any agreements.

When is it appropriate to get your lawyer involved? Many clients don’t want to get lawyers involved unless and until they have to. When we are completed mediation I typically will provide you with a draft Separation Agreement, your property spreadsheet, all of your disclosure organised and labelled so that it is easy to review and complete, and a cover letter describing any context required for your lawyers (so you don’t have to explain some of the complexities). This is your “mediation package” which I describe as being handed to your lawyers on a “silver platter”. If you choose to wait until negotiations are completed before meeting with your lawyer, this package will help to provide context so your lawyer isn’t looking at your situation in a vacuum as much as possible.

If you wish, you can get your lawyer involved during the negotiation / mediation process. One option is to meet with your lawyer between sessions to describe the session and to get their advice as you go. If your lawyer has suggestions for you, it’s better to get those ideas before you finalise your negotiations in mediation. As a mediator I can provide legal information (black & white law), but not legal advice (interpreting the law and strategically applying it to your situation). Another option is to have your lawyer attend one or more mediation sessions with you. Most clients don’t want to do this, as it adds to the cost of mediation, but again it can assist especially if you anticipate one particular session being a discussion on very complex issues.

Mediation and legal advice can and should go hand-in-hand. I understand when clients don’t want the expense of both professionals at once when their finances are likely pushed to the max. However, if mediation is used primarily for the negotiation process, and lawyers are used in the background between sessions or as add-ins on a particular session or two, it can be very helpful to assisting you to make your decisions. I always tell my clients it’s better to have your lawyer retained early in the process, have them at least in the background ready to assist you as/when you need them.