Last week I had the pleasure of mediating a combination of cases where both parties had attorneys; where only one party had an attorney; and where neither party had an attorney. This made me think about the topic of attorneys and whether having an attorney is required to mediate.
I’ve had several people inquire as to whether an attorney is necessary to mediate. The answer is- No. It is not required to mediate with an attorney. However, even though many mediators are also attorneys, they are not acting in the role of an attorney when they are mediating, and they are unable to provide legal advice to the parties they are mediating for. Therefore, if you have any legal questions, it is recommended that you consult with an attorney.
In many of my mediations, there are attorneys present. In a family case, often times one attorney represents one spouse, and another attorney represents the other spouse. In my civil cases, one attorney represents the Plaintiff; and the other attorney represents the Defendant. Having an attorney present at mediation allows for the parties to have their legal questions answered at the mediation, and they are able to listen to the attorney’s advice and following the guidance of counsel.
In some mediations, there is an attorney who represents only one party while the other party does not have an attorney. This is also completely acceptable. However, the attorney only represents one party and legally cannot represent both parties. Therefore, the non-represented party should know that the attorney is only advocating for the party that is represented.
I also mediate for several parties where neither party has an attorney. I often enjoy these types of cases because it gives the parties the opportunity to work together to try to come up with what works best for themselves, their family, their children, etc. However, as a mediator, I am unable to provide legal advice. Therefore, I always recommend that if either party has any legal questions, that they are encouraged to speak with an attorney. Also, after an Agreement is reached in mediation, and prior to the Agreement being signed, it is encouraged, but not required, that the parties speak with an attorney to review the Agreement.
In summary, it is not required for an attorney to be present at a mediation. However, it is recommended that parties have all legal questions answered by an attorney of their choosing prior to entering into an Agreement.
