Question:

Can I hire an attorney after to review the documents from mediation before I sign anything?

What if I hire an attorney before we meet mediation? Do I have to tell the mediator that I have an attorney?

Will my attorney want to be at mediation?

I’m just trying to figure out what will be the best plan. My husband claims he doesn’t want an attorney. He said if I get an attorney he will get one too. I don’t want this to be a drawn out pissing match. He’s hurt, sad, and angry and I just want things to be fair, yet have my kids and my best interests protected.

Answer:

Yes, you can go to mediation without a lawyer

(and if you do, I would recommend you notify everyone in advance of this; it’s the decent thing to do, and it preserves your credibility).

You do not have to tell the mediator or your spouse that you have an attorney, if you elect to attend mediation without an attorney. The rules for what the Utah Code requires of you for divorce mediation are short and sweet, and you can read them by clicking here.

Sometimes a court will order parties to attend mediation with their attorneys (I don’t see the point in this, as courts really ought not be telling people to mediate with the aid of an attorney when there is no authority for them to do so; technically, a party could, in response to being ordered to bring his/her lawyer, simply fire his lawyer before mediation, go to mediation, and then re-hire his/her lawyer).

Should You Go to Mediation Without an Attorney?

If you choose to attend mediation without an attorney, notify your spouse that you will come to mediation in good faith to discuss and negotiate the issues and reach agreement, but that you will not sign any final, binding agreement unless and until you have reviewed any proposed written settlement agreement with an attorney. If you go to mediation without an attorney, this is the way I’d recommend you do it.

Sometimes when you tell your spouse that you will not sign any final, binding agreement unless and until you have reviewed it with an attorney your spouse your spouse (or even the mediator) may accuse of stalling the mediation process. You may be warned of dire consequences if you don’t sign an agreement reached the day of mediation. Look, any proposed or tentative agreement that can’t survive being slept on is an agreement that would likely never have worked or worked fairly. So have the courage to do as you say.

That stated, I would recommend that you attend mediation with an attorney, as opposed to going to mediation without a lawyer and then planning to review any proposed written settlement agreement with an attorney. Telling your spouse you won’t reach agreement without first taking more time to review a proposed settlement with an attorney can chill the attitude of compromise and settlement.

Your attorney should, in my opinion, want to be at the mediation settlement conference to help you negotiate and negotiate quickly, effectively, and fairly to a settlement.

Your spouse claims he/she doesn’t want an attorney? No surprise there. Nobody really wants a divorce attorney (unless perhaps the attorney is free of charge or considered to be so amazing you’d be a fool not to hire him). My feelings aren’t hurt; attorneys have come to be viewed—accurately—as providing too little value for the money they charge. But this is not true of all attorneys. You can find an attorney whose ROI (return on investment) is well worth it, and that kind of attorney is worth seeking and hiring.

I think people get it all wrong when they see “if you get an attorney, then I will too!” as an antagonistic sentiment. Both parties having good (meaning skilled, knowledgeable, sensible, values and purposes aligned with yours) helps the negotiation process work better, faster, and inexpensively. Both parties make far better informed decisions. Bringing a lawyer to mediation should not have the same effect as would bringing a gun—and if it does, you and your lawyer are doing more harm than good to the settlement process.

Mediations aren’t a time to negotiate by threat, although there is nothing wrong with standing one’s ground and taking the position of “this is my bottom line: if this isn’t acceptable to you, I believe I will do at least this well, if not better, if the case goes to trial.” Just make sure you really mean it; don’t use it as an idle threat because bluffs are easy to call.

If you and/or your spouse see hiring a lawyer as a threat, as a purely defensive move, then you are not wanting a mutual “win” by settlement, you want to “beat” the other in settlement. That is sure to result in anger, frustration, stalemate, wasted time, and wasted money. Think through your objectives. Know what matters to you most. Think through the various ways to achieve your objectives; the more creatively you think the more likely you will be to find a way. Be honest. Be fair. Be flexible. Be realistic. Start with a wish list, then pare it down to what’s likely to happen if you go to trial. A lawyer is essential to that process.

Then prepare a comprehensive settlement proposal well in advance of mediation and send it to you husband or his attorney, if he has one. Negotiation by ambush will likely result in a tremendous waste of time and money, and reduces the efficacy and likelihood of success in mediation and negotiation process.

Utah Family Law, LC | (801) 466-9277 | eric@divorceutah.com