Use of Divorce Lawyers in Collaborative Mediation

Will Detente collaborative mediation work without lawyers?

Yes!  Having the choice about whether you have a divorce lawyer and how he or she participates in mediation helps you control the legal costs and decision-making. If you have them, we are happy for your divorce lawyers to join your collaborative divorce mediation sessions. However, 99% of our clients who do have lawyers do not bring them into mediation because they want to do the negotiating themselves and save the expensive of lawyers' doing it for them. We do ask that you let us know if you want to bring your lawyer to a session. We'll inform the other spouse in advance so he or she can decide whether to bring his or her own divorce legal counsel too. With your permission we'll keep your lawyers informed of the progress of the mediation and consult with them if needed to develop settlement options, and clarify law or procedure in your case.

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Can we have one divorce lawyer for the two of us?

Many divorcing couples who believe they have worked out a deal between them want to use one lawyer to answer legal questions, draw up the paperwork, and finalize the divorce at the courthouse.  Many are afraid that if each of them has a lawyer, the two lawyers will stir up unnecessary conflict or they will be too expensive.  So can you have just one divorce lawyer for the two of you?  No, but there are options.  See also our video explaining the role of lawyers in more detail.

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One mediator is a family lawyer, why do I need another lawyer?

When considering whether to hire a lawyer or to go forward in mediation without one, it is important to remember that the attorney-mediator's role is to be neutral, not to take sides. The attorney-mediator can tell you what the law is and help you to understand settlement scenarios and options. However, the mediator cannot represent you in the mediation or give you individualized legal advice even though the mediator is an attorney. Only your own lawyer can do that.

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What legal document does the mediator write?

At the conclusion of your mediation, the attorney-mediator will draft a mediated settlement agreement (MSA) that contains all the terms you agreed to and that can easily be incorporated into a divorce decree. We don't require either of you to hire your own attorney and neither does Texas law. However, you may want one to check over your MSA before you sign it because family law mediation agreements are binding when signed with few exceptions. Having the advice of an independent attorney will give you the peace of mind of knowing the decisions you made in mediation were smart and well informed.

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Will I need an attorney to "paper" my divorce?

Unless you have a very simple divorce (no children and no property) and you feel comfortable using legal forms, you are going to need an attorney to "paper" your divorce and process it at the courthouse. Attorney- mediators in Texas can do lots of things to help both spouses in mediation, but the lawyer ethics board draws the line at drafting your petition to start the divorce process or your decree that the judge signs to finalize your divorce. They also don't allow one attorney to represent both spouses.

What most of our clients do is one of them hires a mediation friendly family attorney who offers "unbundled legal services" and charges hourly to review the mediated settlement agreement, incorporate it into a decree, prepare the other required forms, and attend a short hearing where the judge completes the divorce. The other spouse has the choice to hire his or her own lawyer for the even more limited purpose of reviewing the MSA and checking over the decree the other spouse's lawyer drafted. Your Detente mediators offer a free one-hour meeting if needed at the end with you, your spouse, and your attorneys to mediate any final terms and details; address and resolve any concerns about MSA or decree language; sign the MSA; and set a schedule when the decree can be expected to be entered.

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Should we skip mediation if we each want attorneys?

Spouses often wonder if they should forego mediation if they are going to hire two attorneys anyway. The answer is use mediation!  Even if each of you hires lawyers to perform limited services, you will still save a substantial amount of money by doing the legwork and negotiating yourselves in a streamlined mediation process rather than paying those lawyers to do the same work in parallel processes for each of you. If you do not have a lawyer and you want one who will not attempt to stir up conflict, we are happy to refer you to those who understand the Detente Mediation process and will support your efforts to reach an amicable resolutions.

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