Clients are often surprised during a free consultation when I suggest they should consider hiring a lawyer.
The Family Mediation process, as practiced in Canada, has several variations and professional approaches. Clients who call several different professionals looking for the right fit may find it helpful to know ahead of time that a Family Lawyer is an integral part of creating a legally binding separation agreement.
Consulting with a Family Lawyer is an integral part of creating a binding separation agreement
Although it’s not required for a couple to separate and apply for a divorce, the independent advice and/or legal drafting from a lawyer can only add to the durability of the joint decisions made during the mediation process. When I first suggest including a lawyer, the two most common responses are either a rejection, because the client perceives that lawyers are not trustworthy, or, more often, they feel that their circumstances are relatively simple and lawyers will complicate the process unnecessarily.
If you don’t trust lawyers as a group, please allow me to vouch for the many I have met who are worthy of trust. The collaborative practitioners I work with, as well as those who offer unbundled legal services, are “settlement focused”, which means that they are devoted to helping you find an agreement that is in your interest. Although their role includes explaining the legal model of divorce and advocating for you to consider other options, they are doing so to help you avoid court.
You may also think that your circumstances are relatively simple and the conflict between you and your spouse is low. If this turns out to be how things proceed in the process, then it may work between you to only hire lawyers for legal advice and not for drafting the agreement. However, if you have concerns about your partner’s financial reporting or reaching agreement on expenses for the kids, then a mediated agreement that has been reviewed and written by a lawyer can provide you with extra security and peace of mind for the long term.
Hiring a lawyer now is the ounce of prevention that makes the pound of cure unnecessary
This is true because lawyers can have their clients produce financial reports that are sworn statements in the eyes of the court. If you ever found out that your spouse was not fully transparent on their statement, it would be much simpler to seek the court to order that the agreement be changed to a fair result.
Another scenario that comes up sometimes is a party who is having difficulty making well considered long term decisions. Sometimes they make statements that they don’t want things like spousal support when they have an entitlement, or are determined to relinquish dividing valuable assets to get the process over with.
If you have any concerns at all, I highly recommend that you have a free discovery call with a Family Lawyer before we mediate.
I say this because if the above client happened to change their mind a year after the separation, they may be able to find a lawyer to argue in court that some of the hard-won agreement between you during the mediation should be set aside.