Our distance family mediation service strongly encourages its clients to get independent legal advice as they go through their separation and divorce. In today’s blog Erin Shaw, lawyer and consultant for our Project, explains why we do this.
Some people wonder why a mediation service – whose goal is to help parties resolve their differences so they don’t have to go to court – would be telling its clients to see lawyers. They believe going to lawyers will just escalate the conflict and add to the cost and risk. They wonder why they need to see a lawyer if the mediator is a lawyer and why, especially once they have an agreement from a mediation, they can’t just do it themselves.
A lawyer can tell you about your legal rights and obligations with respect to parenting arrangements, support and the division of property. The lawyer should also be able to identify options for reaching resolution and help you understand the implications of various options in your particular case. This legal advice can provide a framework for negotiating an agreement that will be fair to everyone involved.
Doing it yourself is always an option, but it’s not one we recommend. If you make decisions without a good understanding of your rights and obligations, you might not be happy about them in the future. We believe the right lawyer can add real value by helping you make informed decisions that will stand the test of time.
You are free to make agreements that do not strictly conform to what you might be entitled to under the law, but with proper legal advice in hand, you can make informed choices and appropriate trade-offs.
Mediators are generally unwilling to provide legal advice to the parties, even if they are lawyers since giving advice may detract from the mediator’s important neutral role.
You should be able to find a lawyer who respects your desire to resolve your issues cooperatively. The practice of family law has changed a lot in the last 10 years. While there are still litigation oriented family lawyers out there, many family law specialists share the same values as mediation services: they want to help families solve problems, not promote conflict. Some lawyers actually sign an agreement saying they will not represent you if the case goes to court. For more information about what are called “collaborative lawyers”, see www.collaborativedivorcebc.com. If you go to a lawyer and you are not comfortable with their approach, find another one. Ask around, look at collaborative law websites for a collaborative lawyer in your community or check Mediate BC’s Family Roster for mediators who also act as lawyers.
And, going to a lawyer doesn’t need to cost a bundle. You don’t have to hire a lawyer to handle your whole case. Most lawyers are open to providing what lawyers refer to as “unbundled” services. That means they can provide advice and assistance at specific times, with respect to specific issues or to perform specific tasks. This allows you to exercise more control over the amount you spend on a lawyer.