Divorce Mediators & Review Counsel

An illustration of a couple having a conversation

"Let's use our mediator to help us talk to one another directly, instead of fighting against one another in a courtroom."

Learn More About Divorce Mediation

The Mediator

A "mediator"—without any further distinction or identification—may come from any one of several backgrounds and training.

The Mental Health Care Mediator

Most people are familiar with the mediator who is a social worker, a psychologist, or some other mental health care or behavioral professional. The focus and expertise of this type of mediator is in understanding the feelings and the behavior of the parties in conflict, and working with that knowledge to help the couple communicate. By assisting them in their communication skills, it is the hope that the couple will be able to work out an agreement on their divorce. Any agreement. The legal parameters or legal requirements of such a agreement are not within the scope of expertise of this kind of mediator.

Mediators who are not trained in the law or who are not licensed to practice law, are not qualified or legally permitted to draft the final document that will serve as the "Separation Agreement." [See the definition of a "Separation Agreement" to the right]; nor are they likely to know all the legal requirements for the content of that document. Usually, this type of mediator provides notes or an outline of what the agreement consists of, and has each spouse hire an attorney or an attorney-mediator to draft the final document.

Unfortunately, the notes or outlined agreements that are the products of this type of mediation will sometimes fail the legal-standard test when presented to a lawyer or to an attorney-mediator for drafting. All too often, these agreements are too incomplete or too flawed to form the basis of a full legal Separation Agreement, or contain provisions that are so contrary to public policy that the foundation of the agreement collapses. Couples who end up with such an agreement may be forced to start all over again with a professional with the legal background to direct them to a proper agreement.

The Attorney-Mediator 

An "attorney-mediator" has an entirely different focus from the mediator who is not a divorce lawyer. With an attorney-mediator, you are working towards the creation of a document called the “Separation Agreement.” It is the document that puts into writing the verbal agreement that has been negotiated in mediation and it will govern all the terms of your divorce. It will be all encompassing, and in legal form. It will not be in note or outline form. It will contain all the provisions required by law to be included in your Separation Agreement. Most importantly, it will be legal and fair to both spouses. And, because your mediator is a licensed attorney, the Separation Agreement can be written by your mediator, relieving you of the obligation to hire another professional for the drafting. 

The mediator should guide your discussions to those issues that need to be addressed in the Separation Agreement, but not permit any unfair or illegal resolution offered by either spouse to become the final word in a topic. She may offer alternatives to the unviable positions taken by one client or the other, but she may not impose any of them on the couple.  The two spouses are the creators of their own settlement, but the mediator is there to make sure the settlement is fair, negotiated without any intimidation or bullying, complete in its content, and legal.  

The Cost of Divorce with an Attorney-Mediator

The first question most people ask when investigating mediation is: "What will it cost?" The answer is: "Everybody's case is different, so it is not possible to predict." What is possible to predict, however, is that the cost will probably be much less than the cost of litigation for the same case.

Most attorney-mediators bill by an hourly rate divided into increments of time, e.g., every 15 minutes, every half hour, every 10 minutes, etc.  Many, if not most, charge a retainer fee which is paid by the clients in order to start the mediator’s work on the divorce case and to protect the payment of her fees.  The mediator pays herself from this retainer as her time is spent. The practice of charging a retainer is even more common among divorce litigators, as discussed elsewhere in this website.  Further, retainer payments may be “replenishible” so that funds are always on account to cover the mediator’s time.

The amount charged for a retainer may vary from professional to professional, and from case to case, depending on the locality, the nature, facts, and complexity of the case, and the experience and background of the professional setting the fee.  Never be afraid to ask a mediator what he/she charges and whether a retainer will be required.  

The Review Lawyer or Review Counsel

The review lawyer is an attorney whose responsibility is for only one of the participants in the mediation process.  Each client should consider hiring a separate attorney who will serve as his or her counsel during or at the end of the mediation process - and sometimes before the mediation begins.  One way to view the review lawyer is to see her as an advisor, a guide, and an educator.  The scope of this lawyer’s work will depend largely on what the client says he or she wants from this lawyer.  For example, some clients present themselves before mediation begins looking for an analysis of the finances so they can have an understanding of what constitutes a “fair” settlement before they have their first mediation session elsewhere.  Other clients do not even meet their review lawyer until mediation has resulted in a written (but unsigned) agreement, at which time the lawyer is asked to review all of the financial documents and the Separation Agreement.  The client wants to know that the agreement says what he or she understood it to say when he/she approved it in mediation; or else they want an explanation of why it does not.  On rare occasions, the review lawyer is asked to communicate with the review lawyer who is counseling his or her spouse, to iron out new or unresolved disputes.  This rarely becomes - and should not become - a contentious or adversarial dialogue.  Both review lawyers usually understand that the clients wish to resolve their divorce with mediation, and take care to avoid an escalation of the dispute into something that makes further mediation improbable, if not impossible.  But it doesn’t always go that way. 

Sometimes the review lawyer crosses the line between advisor and advocate.  If the lawyer is not clearly instructed otherwise by the client, the review lawyer may either forget or ignore the scope of his service for the client.  Instead of inquiring into the compromises made by both spouses that led to the Separation Agreement the review lawyer has been asked to comment on, the lawyer takes on a posture of: I can do better for you if you turn this over to me.  They transistion from the role of advisor to the role of advocate, and then hint or promise that they could "do better" for the client if the client is willing to abandon the mediated agreement and turn the case over to the review lawyer - - who - - (cough cough) - - also happens to be a litigation lawyer.  This can turn a mediated divorce into something never intended by the client before encountering this particular “review counsel.”  

When I serve as a review counsel, this is not an outcome that would ever happen.  First, I do not litigate divorces any more, as I do not see litigation as the best course for most family matters, including divorce.  My clients, therefore, will never have reason to wonder whether I might review their mediated agreement as an opportunity for me to spin their case into something more - well - more expensive for them and more lucrative for me, like litigation.  

Second, I view the role of “advisor” or "review counsel,” as the one for which I was hired, and I take  my instruction from my client as to the role I am expected to serve. As a result, I provide my best advice regarding the the agreement(s) the client has brought me from their mediation process.  I inquire about how the agreement was reached, and then advise them on the fairness of the document - or on its unfairness. I do not take it upon myself to unilaterally impose on the client an expanded view of the role for which I was hired.  If I review a case and conclude that the agreement is lacking in some manner, I convey my opinions to the client, and provide my best advice on how to rectify the problems I have found.  My hope is to return the client to the mediation room to iron out those problems, but if that is not a viable option, then the client will need a new attorney for the anticipated litigation.  The point is, I will never have any interest in taking a case into a more contentious  long-term, and expensive process.  I will always let the client know that that option exists, but that it is an option that cannot be exercised with me as their lawyer.  

There are two more reasons why my clients will never hear from me that "I can do better for you."  (1) THERE ARE NO GUARANTEES ONCE THE CLIENT IS IN AN ARENA WHERE SOMEONE ELSE IS DECIDING THE END RESULT.  That someone else would be the trial judge.  (2)  THE COST OF SUCH A BATTLE WILL BALLOON FAR BEYOND WHAT MEDIATION WOULD HAVE COST ARGUING OVER THE SAME DISPUTED ISSUES.  In the end, after paying two litigation lawyers, who is to say whether the remaining dollars in the clients' pockets will be worth what was gained by going to trial?  And that assumes that either client is awarded what was sought and fought for at trial.  

It is each client’s job to keep in mind how each part of the Separation Agreement was negotiated; who gave what in exchange for something else; and how the circumstances of the couple changed during the mediation process from the time it began to the time the couple agreed upon a Separation Agreement that each felt was fair.  Those facts are the context in which the Separation Agreement was created, without which the review lawyer is missing information that may affect how the agreement is to be  evaluated. It is the client’s job to remember those facts and to make sure the review lawyer is made aware of them. 

One last word on review lawyers.  I sometimes hear from my own mediation clients that they have had a ten minute phone consultation with a review lawyer that they have never met, to whom they have provided no financial information, to whom they have paid no fee, and whose name they cannot quite recall, much less spell - and yet, the client is able to recite in great detail what that lawyer said over the phone about why the client should be entitled to keep the house, or why the client should not be made to share his/her retirement account, or why the client should not have to pay any alimony, etc.  If you contact me to serve as your review lawyer in a divorce being mediated by another lawyer, I will never convey advice or information in that phone call that could somehow be construed as legal advice in your mediated divorce.  And I doubt that any lawyer would.  If you choose mediation as the alternative to litigation, you should be prepared to hire a lawyer who is your advisor along the way or at the end to review the work; and be prepared to take seriously the scope of the services you carve out for him or her, and be willing to make appointments that are used for in-depth dialogues; and to pay a fee for that lawyer’s time, expertise, and guidance.  Free advice over the phone is worth exactly what you pay for it.   

  

The Cost of Review Counsel 

The fee structure for a review counsel is not unlike the way in which an attorney-mediator works.  Some review lawyers, under certain conditions, will work without asking for any retainer payment in advance, and some require a retainer for at least a part of the work that is anticipated.  Like attorney-mediators discused above,  almost all of them bill at hourly rates - as opposed to a flat fee.  When you phone a prospective review lawyer, you should never be afraid to inquire about his or her billing policies, and whether they require retainers.    


All Areas in Connecticut Are Serviced by The Firm

Serving New Haven County, including Woodbridge, Guilford, Madison, Cheshire, Ansonia, Beacon Falls, Bethany, Branford, Derby, East Haven, Hamden, Meriden, Middlebury, Milford, Naugatuck, North Branford, North Haven, East Haven, Orange, Oxford, Prospect, Seymour, Southbury, Wallingford, Waterbury, West Haven, Wolcott, New Haven and the surrounding communities. Also serving Fairfield County, including Danbury, Easton, Westport, Weston, Fairfield, Bridgeport, Ridgefield, Redding, Newtown, New Fairfield, Sherman, Shelton, Trumbull, Brookfield, and Monroe; and serving Litchfield County; Hartford County; Middlesex County; New London County; Tolland County; and Windham County.


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