Meredith Cohen, Certified Mediator
Divorce by Mediation
605 East Robinson Street
Orlando, FL 32801
Phone: 407-977-0021
FAX: 407-641-8390
Role of Family Lawyers
The following article written by Meredith Cohen was published in the "Bar Briefs", the monthly pubication of the Orange County (Florida) Bar Association, September, 2006:
THE
ROLE OF FAMILY LAWYERS
IN
PRO SE DIVORCE
MEDIATIONS
Pro
se divorce mediations are those mediations in
which a mediator meets with a divorcing couple
without attorneys present to help the couple work
out a marital settlement agreement and help the
couple complete the other Supreme Court forms
required to obtain a divorce without attorneys in
court. Increasingly divorcing couples
are coming to mediation instead
of attorneys, for several reasons,
including (1) they have agreed on most issues and
want to resolve the others through mediation; (2)
they cannot afford or do not want to pay the
retainers required by attoeneys; (3) because of
the high fees of divorce reported by their
friends or the news media.
There is still a role to be played by family lawyers in these pro se divorce mediations. Since a mediator is not permitted to ethically give legal advice, even if the mediator is an attorney, the mediator will not do so. The mediator should recommend that the husband and wife each go to an attorney of their choice at any time during the mediation when the spouse feels a need for legal advice. Once the Marital Settlement Agreement and the other Supreme Court forms are completed and ready for signing, the mediator should recommend that each spouse take the documents to separate attorneys for review and legal advice on whether it is in the best interest of the party to sign the agreement and other forms as written.
Since attorneys are now permitted in Florida to ethically “unbundle” their legal services, and represent a client on a limited basis, a Family Law attorney, may agree to represent a divorcing person in mediation with a consultation to review the proposed Marital Settlement Agreement and other documents, and to give legal advice on whether the completed agreement and other forms as written are in the best interest of the client or whether additional language should be added before signing. The consulting attorney may want to put in an opinion letter his or her recommendations. Such a consultation may require one or more hours of the attorney's time, depending on the complexity of the case, and could be billed at the attorney’s hourly rate.
I
recall one of my pro se
mediations the attorney consulting with one
of the mediating spouses wrote a two-page
single-spaced letter recommending that
certain insurance provisions be added to the
agreement. The
other spouse agreed to the addition of such
provisions, and they were added before
signing. From my days of representing
clients in divorce cases (which ended some
eight years ago) I recall using a model
Marital Settlement Agreement I had created over
the years. This reminded me to include in every
agreement I drafted or approved certain key
provisions. The
Supreme Court Form for a Marital Settlement
Agreement provides sections for the basics,
such as listing and evaluation of the assets and
debts, primary physical residence and contact for
the non-custodial parent, amount of child
support, and alimony. But there is no
section to cover what happens if one spouse
dies before the parties are divorced
- who will be the personal representative -
and so on. The consulting attorney would
probably recommend language on the death
eventuality found in every agreement drafted by an
attorney for a private client. The
attorney who consults with a spouse in
pro se mediation may want to have ready a
list of key provisions the attorney includes in
his or her agreements , which may be handed to the
spouse with the opinion
letter.
As
more Family mediators take on pro se
divorce mediation, the demand for Family Law
Attorneys to offer the consultations described in
this article will increase. If the
consulting attorney is ready with the
provisions considered vital to a complete
Marital Settlement Agreement, the legal
advice and recommendation to include
those provisions in the mediated Marital
Settlement Agreement before signing will be
invaluable to the client.
©2009 Meredith J. Cohen, PA