Lawyers can play one of three different roles for you when you seek their advice during mediation, with increasing levels of commitment to you as a client.
No Deposit; No Ongoing Relationship (Lowest Level of Commitment). You can hire them by the hour, pay as you go, with no deposit or retainer, and with no ongoing relationship assured. Accordingly, you are not assured that the lawyer will return your call since you are not an existing client. You are merely someone that that lawyer has seen in the past. You cease to be a client when you leave the office although what was said remains confidential and the lawyer would not be able to meet with or give legal advice to your spouse. Since there is no ongoing relationship and they do not have a deposit from you in recognition of continuing to advise you, or the possibility of continuing services, they have no obligation to return your call at all, let alone promptly return it. In trying to schedule an appointment to see the attorney, you will likely find that the attorney cannot fit you into their schedule to see you for a week or more. Certainly, you would not be seen as quickly as someone who has given a deposit or hired them to file suit. We do not recommend using an attorney in this capacity during the mediation process.
Modest Deposit & Limited Ongoing Relationship (Ideal Level of Commitment). The most cost-effective way to engage a lawyer during mediation is to give that lawyer a modest deposit, sometimes called a retainer. With a deposit, the attorney understands that you plan to contact that attorney for legal advice on an ongoing basis, which request you would typically initiate. The contract fee agreement with the attorney would be very specific about the fact that the attorney has not been hired to engage in any action for you that is not initiated by you typically so that you would know when and if any of that deposit is spent by the attorney. The deposit is held in the attorney’s trust account and as you get advice from the attorney, the attorney bills you and transfers earned funds from his trust account into his “professional” account. That attorney would be obligated to respond to your phone calls or requests for meetings with some degree of promptness based on the fact that you gave that attorney a deposit of funds just for such purposes. The fee agreement could provide that the attorney would attend mediation with you or only advise you between sessions. If the attorneys don’t attend mediation sessions, both parties could agree that the mediator will send summaries of each session to the attorneys. If you chose not to have your attorney attend the mediation sessions with you, but want legal and negotiation advice and coaching from your attorney during mediation, then read our handout on how to assure yourself of getting that advice. Under this lawyer role there is usually little attorney involvement at the beginning of the mediation process while the parties are completing their own informal “discovery” of expenses (budgets), listing and valuing assets, checking out balances owned on mortgages and credit cards, etc. Once the parties are ready to discuss the meaning of those facts, and what options for settlement those facts disclose, the parties are ready to get meaningful legal advice, ie, to learn how the law applies to those facts, and to begin their negotiations in mediation.
Large Deposit & Lawyer Represents You (Speaks for You, You Give Up Control). A third category involves the greatest involvement of the lawyer, greatest deposit and more attorney’s fees charged, where you actually sign a fee agreement and representation agreement for the attorney to take some specific action for you, such as attending mediation with you, negotiating with your spouse’s lawyer or filing a divorce action in Circuit Court or a petition for custody, visitation or child support in the Juvenile and Domestic Relations District Court. We recommend that you hire an attorney to give you advice during mediation. The important thing is that you be clear with the attorney about the level of their involvement and that you will expect prompt return of phone calls and scheduling of meetings to review the progress of mediation as you feel the need and as the mediator recommends. There is often a misunderstanding about the need for interaction between mediator, clients and their attorneys. Some attorneys feel that you either participate in mediation or you hire the lawyer to direct the process of disengaging from the marriage legally. It is not an either/or situation.
The foregoing provides educational information and does not provide legal advice. It was not prepared for you either generally or in connection with any specific issue or case. The mediator does not give legal advice. You are responsible for obtaining legal advice from your own lawyer.