Recently I received a call from a review attorney. My mediation client brought the attorney an Agreement we had produced. The attorney wrote out a list of comments and suggested changes. The client then brought the list back to mediation. At the mediation session, we discussed the likely effects of the changes and whether we wanted to implement them or not. When both the husband and wife go to review attorneys, both attorneys’ comments and suggested changes are discussed.
Unfortunately, often, that is not what happens.
I’m getting the sense that a lot of attorneys don’t know the difference between a mediator and a Jedi Knight. (Maybe if they saw the lightsaber, they would understand the difference.) They have no idea what a mediator does, how to use a mediator, or what the review attorney’s role is in the mediation process. So, let me take a moment to explain the role of the review attorney.
As a review attorney, my client will come to you with the Agreement that we have created in mediation. Please do the following:
Review the Agreement.
Suggest any changes you think are appropriate.
Recommend any additional language you think is needed.
Write everything out for the client, so he/she has it, in writing, to bring back to mediation.
I would never tell an attorney how to practice, so they can make whatever suggestions they think are appropriate. I do ask that the attorneys keep in mind that these are mediation clients that came to mediation for self-determination. They want their sense of what is fair respected. This can be very difficult for some attorneys to understand. Their role is not to treat this like a litigated case and create a “wish list of demands,” which are unreasonable demands the other side will never agree to, and which can then send the negotiation headed in a whole other direction.
The review attorney’s role is to review the Agreement, write out suggested changes, so the client can return to mediation to decide, with their partner, whether these changes should be implemented or not. The husband and wife, together, will make that decision.
I hope this helps clarify the review attorney’s role in mediation. They are the advisors, not the deciders.
Using a review attorney can be an excellent opportunity for attorneys and mediators to work together to help couples going through the divorce process.