Parties involved in mediation are usually encouraged to retain independent counsel prior to signing a final agreement. Alternately known as review or consulting attorneys, these professionals can add important value, support and peace of mind for clients who are mediating their disputes. But clients often wonder who they should retain and when, and the answer to both of those questions may matter more than clients realize.
Who to hire?
Although review attorneys can provide a broad range of services, the role of a review attorney can be quite limited if the client wishes. For that reason, it can be tempting to underestimate the importance of who to choose. Some clients assume they can just rely on their brother-in-law who is a real estate lawyer or call a barracuda litigator their friend used. But even where the job appears small, choosing the wrong review attorney can create big problems. Here’s a list of what to look for, and what to avoid, when choosing a review attorney.
- Subject matter knowledge.
If you are mediating a divorce, for example, it is critically important that your consulting attorney understands divorce law. They will be helping you understand and evaluate the agreement in light of the applicable law. The advice they give can only be as good as the depth of their own knowledge and understanding. And while most attorneys can read a contract, familiarity with the specific provisions, court requirements, and underlying law makes for an infinitely more valuable review.
- Respect for the mediation process.
Mediation is based on the idea that the parties themselves are in the best position to make important decisions about their futures. Mediated agreements often consider more than just the bottom line in determining what feels fair and right to the parties involved. Attorneys who are unfamiliar with mediation may overlook these important aspects and take it upon themselves to try to force a “better deal” than the one their client negotiated. Their intentions may be good, but they can inadvertently undo all the hard work their clients and the mediator put in. Their misguided actions can raise the level of conflict between the parties and move them farther from agreement.
- An understanding of the limited scope of representation.
Experienced consulting attorneys know they are being retained to provide reliable advice and promote understanding within the context of a mediation. They are not generally being retained to renegotiate a deal from the ground up and should not expect that they will be taking the matter into litigation. An attorney who seeks an enormous retainer deposit or suggests the use of aggressive tactics inconsistent with mediation should be a red flag.
When to hire?
The short answer is the sooner the better. If a client knows they will be using an attorney at some point to review any agreement they reach, it stands to reason that they will be best served by establishing a relationship with that attorney sooner rather than later. That way they can ask questions and receive the advice they need in real time rather than attempt to navigate the mediation process unsupported. And while some clients may assume that bringing the review attorney in at the last moment solely to review the agreement will save costs, that may not be the result. If the attorney identifies a substantial problem with the agreement, wouldn’t it be more efficient to do so earlier in the process than after the agreement has been drafted?
The role a consulting attorney plays is largely dictated by how the client wishes to use them. But retaining the right attorney early in the process offers the client the option to receive important advice and support whenever the need should arise. And that’s exactly what clients deserve.