Here’s Why You Need a Consulting Attorney


Originally published on in December 2017

Dear Client,

You asked why you should pay $1,000+ to have a consulting attorney “rubber-stamp” the mediated divorce agreement that you and your spouse have reached. You shouldn’t. You don’t need a rubber stamp. You need a thorough evaluation and competent advice.

Self-determination is a key concept in mediation. It means that you and your spouse decide what your agreement should be, not a judge, not a lawyer, not your mediator. There are lots of reasons why the agreement that you and your spouse have reached is good for you. It gives you finality. It preserves and protects the co-parenting relationship that is so important to you.

The issues in your case are complex. Some of your ideas may fall outside the “circle of reasonableness: of conventionally acceptable results. If she speaking with an attorney, you decide that you want to go ahead with the Marital SeJlement Agreement(MSA) as written, even though some parts of it are unusual, then that will be your business, your decision. You will have received advice from someone whose focus is solely on you and your needs. Your consulting attorney might suggest reconsidering some aspects of the proposed agreement but recommend keeping the rest of it. That, too, is a desirable outcome.

As your mediator, I want this mediation to succeed. In my mind, that means that you need to make your decisions with full knowledge of other options and applicable laws as applied to your situation. You need to do this because as your mediator, I cannot give either you or your spouse legal advice. Your situation is complex. There may be legal theories under which you might be able to claim more assets or more support, or support for a longer time than you have agreed. Or you may have agreed to pay more support or to pay support for a longer time than is typical. You may have agreed to take the “short haI€’ of the property division. You have the freedom to decide what is best for you. You are free to consciously disregard other options if you so choose. But what if there are even better options that are unknown to you but could have been suggested by a consulting attorney who keeps your interests at top of mind?

To select your consulting attorney, I recommend using a “mediation-friendly” attorney because he or she will work with you to support your mediated agreement. If you go to a litigator, you will probably end up in litigation. Since no one can ever predict with 100% accuracy what an independent judicial officer will do, litigation always carries some risks: unexpected results, expense, delay, poisoning of the so-parent relationship, etc. Using a consulting attorney to review your agreement minimizes the risk of surprises as you move forward. It supplies another set of eyes to review and confirm that the agreement supports your goals now and for the foreseeable future.

When you and your consulting attorney have considered other outcomes that you might expect from a trial or collaborative process, and you still decide that signing your proposed mediation agreement is your best option, that is your informed choice. That is what you should expect. That is not a rubber stamp.



Georgia Daniels, J.D., Mediator