Mediation: When “Lawyering Up” May Result in “Lawyering Down”

Mediation: When “Lawyering Up” May Result in “Lawyering Down” by Sandy Balick

{5:24 minutes to read} Noting that, especially recently, even lawyers have been “lawyering up” (at least in our nation’s capital), Wall Street Journal columnist Ben Zimmer (June 24, 2017) set out to trace the origins of the phrase.

The columnist traces the phrase “lawyering up” to the popular TV program NYPD Blue and, more directly, to an ex-cop writer for the show, Bill Clark. “Lawyer up” was familiar police vernacular to the detective-turned-writer. For present purposes, let’s just say the phrase signals a girding to do battle in a legal forum. As to its full, police-speak aspect, the whole article is worth your attention.

What has all of this got to do with divorce and family mediation?

In discussing preliminaries with the couples intent on the mediation process, it’s my practice to highly recommend that each party obtain a consult from a matrimonial attorney. As a lawyer-mediator, I am able to provide mediating parties with legal information, but I cannot inform them of the strengths and weaknesses of their respective legal positions on such matters as support obligations and property division (equitable distribution), as this conflicts with the mediator’s essential neutral role in the proceedings.

A frequent first reaction is:

Why lawyer-up if mediation is supposed to be a civil and economical route to separation and divorce?

The answer’s simple. The mediation process frequently resembles a negotiation where parties agree to divide things and responsibilities. Practical trade-offs are central to the success of the process. The technical nature of aspects of New York’s matrimonial laws helps to explain why attorney consults may be so valuable.

While a financial account statement can quickly reveal the value of an asset, only a lawyer, versed in your unique personal circumstances, can explain, for instance, whether and to what extent the increased value in that otherwise separate property (that is, non-marital) account may be subject to valuation and division in divorce proceedings.

Challenges may be presented under New York’s new maintenance (alimony) laws. Where a party’s income exceeds the law’s mandatory formula threshold, a court would be guided by an examination of no fewer than 14 criteria in determining whether and to what extent a final award might exceed, perhaps substantially, the sum dictated by the mandatory formula. Here, only an experienced lawyer can best explain the ins and outs of the various criteria and the prospective expenses of proving a claim under these criteria. This powerful knowledge in the mediation forum can help to eliminate unnecessary speculation in inter-spousal settlement discussions that constitute the essence of divorce mediation.

This knowledge will not act to constrain your alternatives in mediation but will help to make one a more skilled bargainer.

Thus, what is mistaken for “lawyering up” will frequently accomplish the opposite: lawyering down. Armed with full knowledge of their respective legal positions, viewed in light of their attendant time, proof and expense implications, mediating spouses will be inclined towards effective self-advocacy. This is important to the negotiations which are at the heart of every marital mediation.

What if the mediation fails to achieve an agreement? As a practical matter, most litigated cases settle prior to trial. Thus even post-mediation negotiations will likely continue, although probably through counsel and possibly at the behest of the court itself. A party’s knowledge of her/his legal position will serve as a continuing guide as the case unfolds. And, not a few cases see a return to mediation as the stark realities of the costs of continued litigation set in. Knowledge is not wasted.

Divorce attorneys hired on a consulting basis understand that their role is not to sell the litigation alternative but to:

  1. Help the client understand the key points of the support, maintenance, parenting and equitable issues they will be dealing with;
  2. Provide a better grasp of the prospective costs of the litigated alternative;
  3. Make their clients more effective negotiators;
  4. Be on call to consult when specific issues and questions arise; and 
  5. Assist in preparing or reviewing final separation agreements.

You are not at the mercy of Google searching if you don’t know a qualified attorney to consult with. Most mediators will be able to provide mediation clients with the names and contact information for lawyers skilled in providing a matrimonial consultation. It’s a sound investment.

Sanford (Sandy) Balick, Attorney & Mediator, NY Sandy Balick signature
Sanford E. Balick, Esq.
Founder & Principal Mediator
Consensus Point Mediation, LLC.

Phone: (646) 340-3434
Email: ConsensusPointLLC@gmail.com
www.ConsensusPointMediation.com
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