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Can my lawyer go to mediation? · Family Law Talk

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  Speaker 1: Welcome to Family Law Talk. Familylaw Talk presented by Kirk
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  Stangy of Stangy Law Firm PC. Stangy Law Firm is
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  a multi state family law firm. Now here's your host,
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  Kurk Stangy.
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  Speaker 2: Welcome to Family Law Talk. We have an interesting topic today.
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  The topic is can my lawyer go to mediation? And
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  this episode today is based on an article on our
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  blog FAMI Lawheadquarters dot com dated January nineteenth, twenty twenty six,
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  and the title of the article is can I bring
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  my lawyer to Family law Mediation? So it's a follow
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  up to the episode today. Going over to Familawheadquarters dot
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  com and read this article for more information. But let's
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  go ahead and jump into the topic at hand. Mediation
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  is common and divorce in family law matters. In many cases,
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  the court orders parties to go to mediation. In other cases,
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  the parties may voluntarily agree to participate in mediation in
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  an effort to resolve their case outside of court. But
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  a big question that comes into play in a lot
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  of situations is can I bring my lawyer to family
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  law mediation? All Right? The reality is this is a
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  question that comes up a lot. It's something people think about,
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  it's something people contemplate, and it's a worthy topic and
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  one I wanted to cover in the episode today. Okay.
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  In many mediations, particularly court ordered mediations, parties may go
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  to the mediation alone without their lawyer, which I think
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  is sort of an interesting dynamic. So a party hires
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  a lawyer for divorce or family law matter, but then
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  there's mediation, typically court ordered mediation, and then you have
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  the parties going alone to meet with the mediator to
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  discuss the case. Okay, And so in a lot of
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  these circumstances, the expectation is that the parties are going
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  to go alone and they're not going to bring their
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  lawyer with them to the mediation itself. And yeah, I
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  don't know, you know, this is a common belief, and
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  I think this is what a lot of mediators want,
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  and this is what a lot of lawyers will tell
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  their client. Go to the mediation alone. You don't need
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  me there. And the idea is that the parties will
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  sit out with the mediator and they'll discuss the issues
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  in the case. And it's going to be different based
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  on the type of case. But take a divorce where
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  there's kids and there's assets, and then the idea is
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  what the parties are going to go there with the
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  mediator and they're going to work out child custody and
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  they're going to divide all their property and debt, and
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  they're going to reach a resolution on child support, spousal support,
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  and all the issues in the case, and then the
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  case will just be done. Okay, I think this is
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  sort of the idea. And from my vantage point and
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  being a divorce and family lawyer a long time, I mean,
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  this mindset is really kind of based on a viewpoint,
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  and the viewpoint is that divorce and family law case
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  resolution is really pretty simple, and that parties ought to
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  be able to to just divide everything in half, do
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  a custody agreement that works for both parties, move on
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  with their life, resolve their case, and you don't need
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  a lawyer to do any of this stuff. From my
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  vantage point, I mean, I've heard this for years and
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  I understand and I get it. Look in some cases
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  this can actually work. I mean I've seen cases where
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  parties go to mediator alone and they work out their
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  case amicably. But from my vantage point, the instances at
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  least where I've personally seen it are cases where it's
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  a very short term marriage, there's no kids, there's no assets,
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  so there's really not a whole lot on the table.
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  But from my vantage point, in cases where there's kids,
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  where there's a lot of assets, I personally have not
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  seen a lot of success with the idea of sending
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  my client into mediation alone with the mediator and that
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  a resolution is going to be reached. From my vantage point,
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  I've seen a lot of parties go there and they
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  walk away frustrated that there is no agreement. Okay, So
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  this comes down to the funnelmental question, which is why
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  is going into mediation alone without a lawyer risky? Okay, Again,
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  from my advantage point, in cases where there's kids, where
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  there's significant assets, there's ongoing financial obligations like child support,
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  spousal support, from my vantage point, going into mediation alone
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  can be really risky. And I've had a lot of
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  clients through the years that don't want to do this.
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  I mean, they want me to be there with them,
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  and I think a lot of the listeners probably say, well,
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  why why do they want their lawyer there with them?
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  Because they don't even know what's fair they I mean,
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  they're not lawyers, so they don't know what a fair
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  resolution is in terms of dividing property and debt. Not
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  all clients are financially minded. They're not sophisticated in this
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  all the time, so they don't even know what's fair,
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  and they don't know what details should be in a
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  parenting plan in order to adequately address child custody. And
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  they want their lawyer there just to advise them with
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  the pros and the cons and what's fair and what's reasonable,
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  and to make sure the eyes are dotted the t'ser crossed,
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  and there's not going to be any issues if they
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  agree to settle their case at mediation. So look, from
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  my vantage point, for a lot of parties, if there's
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  significant assets or even a fair amount of assets and
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  they have kids, I mean not having the mediator allowing
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  the attorneys to show up with their clients, I don't know.
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  I just don't see a whole lot of success in
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  these cases settling. And they've had lots of clients who've
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  gone to these mediations alone saying look, I didn't agree
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  to anything at the end because I just wasn't comfortable
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  agreeing without you being there, Okay, And so then This
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  comes down to sort of another fundamental question, which is,
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  why does some mediators prefer that the lawyers not attend?
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  And you know, truthfully, why does some courts maybe prefer
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  that the lawyers not attend and that the parties just
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  go into mediation alone. Look, I mean, I think the
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  idea is noble. I mean, I think the idea is
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  not you know, it doesn't come with bad motivations or
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  anything like this. But the idea is that, look, parties
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  ought to be able to sit down, discuss their differences,
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  resolve them, come to an agreement, and that this is
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  a good thing. And if parties are able to do this,
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  then they'll be able to coparent with each other or
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  they'll be able to move on with their life and
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  not be bitter. And I hate to say this, but
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  the other viewpoint I think that's out there is I
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  think some folks assume if the lawyers show up, they're
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  going to muck everything up, like they'll make things more adversarial,
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  more contentious, they'll tell their client out to settle these
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  kinds of things. And you know, respectfully, I disagree with
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  this mindset. I mean, I guess it's possible some lawyers
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  could do this. But look, most lawyers, most decent, good
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  honorable lawyers, are not going to do this. They're just
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  going to advise their client about what's fair, what's reasonable,
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  and make sure the eyes are dotted and the t's
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  are crossed. They're not coming there to muck it up.
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  They're coming there because they were hired to give their
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  client advice. And it's a little bit scary as a
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  lawyer if your client goes in and agrees to a
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  bunch of stuff and you as a lawyer to think,
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  goodness gracious, that's a terrible idea and this could result
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  in future's disputes down the line. And so as a lawyer,
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  I think good decent, honorable lawyers. You know, one advisor
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  client that way, their client comes away with an outcome
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  that's good for them. Right, Most lawyers are not going
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  to show up to the mediation to muck things up
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  and to make things complicated, or you know, some people think, oh,
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  the lawyer's going to come there to mess up the
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  settlement so the case will be dranked out and they
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  can make more in fees. And I just look, I
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  think most lawyers are good, honorable, decent people, and that's
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  not the reason any lawyer would want to come to
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  the mediation. They want to come in theory to make
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  sure their client's good and a good and a fair deal.
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  And from my vantage point, I could just say, I mean, personally,
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  I've had lots of clients that were just like, look,
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  I'm not going to be comfortable settling without you there.
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  So I would say the chances of a settlement, a
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  meaningful settlement that's actually implemented, it is better in my opinion,
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  if I were at these mediations and if I were not.
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  If I weren't at these mediations. I mean, my viewpoint
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  has been most clients go there and they say, well,
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  I did the two hours or whatever I was required
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  to do, but I wasn't comfortable settling without you being there.
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  All right. Here's some other issues as well, cases where
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  there's power imbalances or safety concerns, and a lot of marriages,
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  there's one party who's sort of dominate in terms of personality,
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  in terms of pressuring the other party, maybe putting some
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  right to rest on the other party, strong arming the
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  other party. And in cases like this, I think it's
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  really dangerous for a party then to go into the
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  mediation by themselves. I mean they could be pressured, they
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  could feel strong armed into settling, and then they have
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  buyers or more after the fact. And so that's another
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  big reason. You know, the client's just sort of going
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  on the mediation alone without their lawyer. I personally think
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  it not a good idea in a lot of circumstances. Okay,
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  and then you get safety concerns. I mean, let's be honest,
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  and divorce and family law, there can be domestic violence
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  in cases, right, there can be significant risks. So the
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  two parties showing up to the mediation alone, particularly if
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  it's in person and it's not like a zoom or
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  something like that. So they're walking into the mediator's office alone,
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  they've got to sit in the lobby alone. And then
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  they're going to go in a settlement like you know
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  settlement meetings in a conference room, just them and the
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  other party and the mediator. I think, you know, for
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  a lot of parties, that's going to be pretty intimidating.
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  So for a lot of parties who are not real assertive,
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  who can kind of crumble easily, then they can go
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  into these mediations settle take a really bad deal because
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  they just there's a power and balance, and they just
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  didn't feel safe even being there, particularly if they're a
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  victim of domestic violence in the past, and so from
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  that vantage point, you know, I don't think it's good either,
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  all right. So, look, a lot of courts are going
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  to order mediation. It's going to be court ordered, and
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  it's gonna be different by the state. It's going to
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  be different by the jurisdiction, according to the local rules
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  or whatnot. But sometimes the court to order the parties
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  to go to mediation, they might need to attend for
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  a certain length of time and do their best. And
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  if that's the case, the parties need to attend. But
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  if there's a way to bring the lawyer that they've
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  hired to give them legal advice with them, I mean,
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  I think, you know, I think that's a good idea
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  if they can do it. If they absolutely are not
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  allowed to do it, and I've seen cases where the
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  mediators do not want the lawyers to appear, then it's
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  like there need to be you know, measures put into
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  play if they have a safety concern. And I think, look,
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  if parties aren't comfortable settling without their lawyer being there,
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  I think it's fair for most parties, even if they
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  like what's being discussed, is say, look, this looks pretty
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  positive and I'm potentially open to this settlement deal, but
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  I want to talk with my lawyer first before I
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  definitively agree to it. And I think that's fair. I mean,
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  parties in a divorce or family all matter need to
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  have the opportum tunity to consult with their lawyer. And look,
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  you know, Van said, from my vantage point, with the
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  court ordered mediations, again, I think it's good. It's a
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  good idea. It's good in theory. But being a lawyer
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  a long time, I have never had many clients go
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  to the mediation alone and reach a comprehensive settlement. From
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  my vantage point, at best, it just sort of starts
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  the conversation and it starts the dialogue that I've seen
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  very few cases settle at a court ordered mediation where
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  the parties went, you know, without their lawyer. And I
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  guess I'll say this in terms of just sort of
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  one final piece. And to me this is sort of obvious,
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  but I don't know why it's not obvious to a
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  lot a lot of people, which is, look, if parties
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  could just sit down or resolve their differences and come
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  to agreements on issues easily in a short period of time.
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  Without their lawyers present, they probably wouldn't be getting divorced, right,
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  I mean, divorce happens in a lot of cases because
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  parties don't compromise well, they can't enter agreements, and so
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  I think that marriage ends up breaking apart. I mean,
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  this isn't the only reason for divorce, but in a
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  lot of divorces, at least the ones I've seen, the
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  communication is a big issue. The disagreement is a big issue,
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  and in a lot of cases parties emotions are very
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  high at the beginning of the case when parties split
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  up or break up. So like this idea that the
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  parties are just going to sit down and settle this
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  quickly and move on with their life. Yeah, that makes sense.
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  It's perfect in theory, but from my vantage point, it's
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  not reality in a lot a lot of cases. Okay,
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  So again, an interesting topic one I wanted to cover.
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  Can I bring my lawyer to mediation? Can I not
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  bring them to mediation? Definitely an interesting topic one I
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  wanted to discuss here today. So as a follow up
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  to the episode today, going over to Familawheadquarters dot com
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  read the article titled Canada I bring my lawyer to
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  Family Law Mediation. The day of the article is January nineteenth,
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  twenty twenty six. That'll be a good follow up for you.
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  But thanks for tuning in. Stay tuned our next episode
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  of Family All Talk coming up. Thank you very much.
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  Speaker 1: Thank you for listening to Family Law Talk with Kirk Stangy.
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  Visit Stangy Lawfirm dot com for more about today's topic
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  or to put Stangy Law Firm to work for your
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