Review/Consulting Counsel in Divorce Mediation: Friend or Foe
By Eva DeFranco
The role of “review” or “consulting” counsel is an integral part of the facilitative divorce mediation model. I am using the terms review and consulting counsel interchangeably, though, many practitioners attach different breadth to the scope of each. Many mediation clients are understandably resistant to hiring review counsel due to costs, time, and a general fear that outside counsel will make the mediation more difficult. Often, one party feels intimidated when the other party consults or retains review counsel. It is not unusual for a mediator to be asked the question, “why do we need counsel, isn’t that why we have you?”
It’s the responsibility of the mediator to explain the benefits and potential roles of review counsel. For the mediator, suggesting review counsel is an opportunity to remind clients that you do not represent either one of them and there are significant problems with a mediator giving clients legal advice. It is beneficial for clients to learn about legal standards and norms, particularly in the judicial district in which they reside. No one wants to find out after the divorce that what they agreed to is significantly different than the general range of judicial norms. It is helpful for clients to get a general framework of realistic expectations. Otherwise, they are being asked to make substantive choices in a normative vacuum. Consulting with review counsel can give clients confidence in the decisions they are being asked to make. Additionally, it is critical in a successful mediation that clients be able to take ownership and responsibility for their concerns, questions and ultimately, the agreements that they make in a mediation. This “buy in” is at the very heart of a successful mediation. For this to occur, there must be separation between the mediator and the decisions that the clients make. IF the job of review counsel is done with competence and sensitivity, there is no downside for clients to seek the advice of review counsel.
There are many lawyers not well suited to the role of review counsel for various reasons: lack of training regarding mediation, misunderstanding of the role, imposition of adversarial elements into the mediation. To this end, I drafted and the Ct Council for Non-Adversarial Divorce (CCND) approved best practices for the review counsel role which can be found on CCND’s web site. It is not unusual for seasoned mediators to maintain a list of attorneys that he/she has found helpful in mediations and to offer suggestions to his/her clients.
The role of review counsel is different from adversarial representation. Lawyers have different philosophical ideas about the primary roles and duties in adversarial representation. But I think many believe that it includes whatever form of zealous advocacy that he or she perceives as effective to get the client the best deal based on the client’s position—whether the position comes from the lawyer’s advice or from the client directly: take a position, fight for the position and obtain results that most closely align with that position. IF one approaches the review counsel role with this philosophy, the mediation will often fail because review counsel will be encouraging his or her client to be adversarial. This is disrespectful to the clients’ goals for choosing mediation in the first instance.
A more successful review counsel approach is with an eye toward educating the client to make informed choices based on adequate information to further the client’s goals and protect them from unforeseen circumstances. This is a much more holistic philosophy and aligns more closely with the parties goals underlying the choice of mediation. In practice, the push and pull between these elements of positional legal norms and evaluative elements on the one hand and the more traditional facilitative approach to mediation on the other hand is always at the core of the challenge for review counsel. To the extent review counsel can recognize that judicial norms are not the only goal or approach to client’s decisions in mediation and money is not the only value that a client may choose to pursue in a mediation, review counsel can be more of a team player and adopt the goals of the mediation team.
