Avoiding High Litigation Costs Should Not Mean Refraining from Using Legal Counsel
by Michael Heath
“The first thing we do, let’s kill all the lawyers” is a famous line from William Shakespeare’s play Henry VI. Considering how steep legal fees can be, it’s a tempting thought! But should cost-conscious spouses steer away from using lawyers altogether when divorcing? The answer is likely no. Using mediation to end a marriage is attractive for several reasons including the avoidance of high legal fees typical of litigation.
Three-Way Divorce Mediation Sessions
Early-stage mediation, or what is sometimes referred to as courtless mediation, is when a neutral third-party assists a couple in coming to a divorce agreement prior to filing with the court. This contrasts with court-mandated mediation where a judge or state statute obligates couples who filed for divorce to attempt settlement via a mediation process. In mandatory mediation, litigation attorneys often attend the negotiations while voluntary mediation sessions are only conducted between the spouses and mediator. Working without attorneys in the room certainly eliminates those billable hours. It can also keep the setting more amicable since litigation attorneys who come with a competitive win-lose mindset often have trouble transitioning to the solutions-based, win-win nature of mediation. Achieving a successfully mediated divorce requires those in attendance to desire a settlement that leaves both parties satisfied.
Four-Way Divorce Mediation Sessions
People who favor the mediation model but are uneasy with the idea of negotiating alone should consider the collaborative divorce model. Like mediators, collaborative attorneys are specially trained in facilitating a cooperative process with the intent of achieving win-win results. They are not there to advocate for their clients in the way a litigator would but to participate during four-way meetings in a consulting role. While mediators are adept at recognizing imbalances of power and steering meetings along a level playing field, pairing up with collaborative attorneys often increases a sense of overall fairness.
Using the collaborative divorce model may seem to be hardly different from hiring litigators to negotiate a settlement. However, the collaborative approach is normally far less costly since the discovery process is the same as in mediation where the couple works together in gathering shared information as opposed to paying two law firms to build a case against each spouse. Sessions are collaborative rather than contentious leading to a quicker settlement and lower legal fees.
Settlement Agreement Versus Memorandum of Understanding
When the mediator is a licensed attorney, they normally create a settlement agreement that both parties sign and submit to the court along with a complaint for divorce. Mediators who are not attorneys usually draw up what is known as a memorandum of understanding that is then turned over to the spouses’ attorneys who draw up the settlement agreement. Even if the mediator is a lawyer each spouse should have their own legal counsel review the paperwork prior to signing and submitting it to the court. The same goes for those taking the do-it-yourself route. Both spouses must understand that whatever they agree to, they will have to live with.
Know Who Your Lawyer Is
A good review attorney will accept that their role is limited in going over the divorce agreement to ensure there are no inconsistencies or unacceptable provisions while highlighting omitted considerations based on provided information. No one should retain an attorney who does not believe in mediation. The process could be derailed when an uncooperating attorney takes a nearly settled case and turns it into a contested one.
Divorce Without Legal Advice Can Be Costly
Some divorcing spouses may be tempted to circumvent using legal counsel altogether, especially when financial resources are limited. It is always advisable to have an attorney review paperwork before submission to the court since issues that are not addressed sufficiently, or are missed entirely, could force couples into an expensive court battle in the future. The rueful Shakespearean line mentioned earlier was actually a tribute to lawyers whom revolutionaries saw as the guardians of a stable, functioning society. If anyone wants to avoid future chaos over a problematic divorce settlement, they shouldn’t kill a lawyer but hire one instead.