The number of California couples who represent themselves in filing their own divorce paperwork is high, and getting higher. Many of my clients fall into this category. As your mediator, I recommend that you consult at least twice with an attorney who supports mediation: at the beginning of mediation and again after we have carefully read through the first complete draft of your comprehensive agreement. However, this recommendation often meets with resistance. It is your mediation, so if you have strong objections to meeting with counsel, I may defer to your preferences. If you agree to settlement details that are fairly unusual but seem to meet your needs or desires, in my mind it becomes more urgent that you understand why consulting with independent counsel is so important. I dedicate this letter to you:
You ask why you should pay $1,000+ to have a consulting attorney “rubber-stamp” the mediated divorce agreement that you and your spouse have reached. You shouldn’t. You don’t need a rubber stamp. You need a thorough, competent evaluation and advice.
Self-determination is a key concept in mediation. It means that you and your spouse decide what your agreement should be, not a judge, not a lawyer, not your mediator. There are lots of reasons why the agreement that you and your spouse have reached is good for you. It gives you finality. It preserves and protects your co-parenting relationship that is so important to you. The issues in your case are complex; some of your ideas may fall outside the “circle of reasonableness” of conventionally acceptable results. If, after speaking with an attorney, you decide that you want to go ahead with the agreement as written, even though some parts of it are unusual, then that will be your business, your decision. You will have received advice from someone whose focus is solely on you and your needs. Perhaps your attorney will suggest reconsidering some aspect of the proposed agreement, but advise keeping the rest of it. That, too, is a desirable outcome.
As your mediator, I want this mediation to succeed. In my mind, that means that you need to make your decisions with full knowledge of other options and applicable laws as applied to your situation. You need to do this because as your mediator, I cannot give either you or your spouse legal advice. Your situation is complex. There may be legal theories under which you might be able to claim more assets or more support, or support for a longer period of time than that to which you have agreed. Or you may have agreed to pay more support or to pay support for a longer time than is typical or to take the “short half” of the property division. You have the freedom to decide what is best for you; you are free to consciously disregard other options if you so choose. But what if there are even better options that are unknown to you but could have been uncovered by a consulting attorney who keeps your interests at top-of-mind?
To select your consulting attorney, I recommend using a “mediation-friendly” attorney because he or she will work with you to support your mediated agreement. If you were to go to a litigator, that attorney might well try to sway you toward litigation, with visions of what you might expect if you hired him or her to litigate. Since no one can ever predict with 100% accuracy what an independent judicial officer will do, litigation always carries some risks: unexpected results, expense, delay, poisoning of the co-parenting relationship, etc. Using a consulting attorney to review your agreement minimizes the risk of surprises as you move toward implementation. It provides another set of eyes to review and confirm that the agreement supports your goals now and for the foreseeable future.
When you and your consulting attorney have considered other possible outcomes that you might expect from a trial or collaborative process, and you still decide that signing your proposed mediation agreement is your best option, that is your informed choice. That is what you should expect. That is not a rubber stamp.