Consulting or Review Attorneys in Mediation – Part 2


{3:45 minutes to read} In my last article, I discussed the role of review attorneys in mediation. In this continuation, I’ll discuss the role of a consulting attorney in comparison.

Where the review attorney is usually brought into a mediation toward the end of the process, the consulting attorney is brought in early. When working with clients as consulting attorney, I consult with them either inside or outside of the mediation room.

Outside the Room

I usually talk to my clients before and after their mediation sessions, outside the mediation room. I prepare them with legal knowledge of the topic—child support, alimony, equitable distribution (distribution of marital assets), custody, etc.—so they don’t go into the session without a basic understanding of the law that impacts their situation.

I also talk through strategy with them. Of course, we are working toward the best result possible, and we are also talking about how to present their ideas, their thoughts, their thinking in a way that’s likely to optimize the other party’s receptivity.

Oftentimes, people find themselves mired in a familiar conflict dynamic. While one person presents his or her thoughts on a subject, the only thing the other person hears in their head is, “What am I going to say to refute what this person is talking about? Blah, blah, blah.” How can that cycle be broken? In the consulting role, I can develop strategies with my client to present their ideas in a more effective way for the purposes of the mediation and coach them on letting the mediator do her work to unlock the conflict.

Inside the Room

Or I could do that in the room, with the mediator and the parties, in the actual negotiation. This is challenging because I’m the consulting attorney to my client in the mediation. I’m there to advise and support my client in mediation. I’m not there to just advocate in the same way a lawyer might in a more traditional role. What I think would be the best possible outcome as a lawyer might be the most money, or the most time, or the least cost, or whatever it is. But for my clients in their lives, it’s much more nuanced. Most people who choose mediation instead of a traditional approach in the first place do so in order to have control over the outcome on their own terms.

I’m also there to make sure that my client’s voice is really heard in the room, and that his or her view is fully articulated. Oftentimes, when people choose to have lawyers in the mediation room, it’s because they are afraid that isn’t going to happen, either because they feel it or because it is true that the conflict dynamic between the couple is really challenging.

The role of consulting attorney is very challenging for a lawyer. It’s very easy to fall into the old kind of straight-up, single-minded advocacy. It requires focus to ensure the mediation doesn’t just evolve into business as usual. Contact me with questions or comments about either of these roles.

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