Do I need a lawyer for mediation?
UPDATED: December 12, 2019
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If you have filed a lawsuit, you should not agree to any settlement without advice from a lawyer who represents you and your interests. While you may choose to mediate without a lawyer being present, it is generally not a good idea. A lawyer representing you at the mediation can advise you while considering various options. While you, the disputant, decides what terms you are willing to agree to, you’ll benefit from the lawyer’s advice and experience. It is also to your benefit to have a lawyer explain all of the legal consequences of any proposed agreement come to through mediation.
Exceptions to Hiring a Mediation Lawyer
There are some exceptions to the need for a lawyer and even to their usefulness during a mediation session. One exception is if you have filed a claim in small claims court or a family lawsuit. Many states such as Arizona have court appointed mediators to handle small claims disputes between parties. During these proceedings, mediators are instructed by the court to refuse any participation by lawyers. In fact, if a lawyer is being disruptive or preventing the mediation process from happening due to intimidation, the mediator has the authority to send them out of the room.
Additionally, the primary purpose of hiring a mediator to handle family law matters such as divorces is to avoid the expense of hiring lawyers and fighting out the divorce in court. In fact, unless the two parties in a family law dispute are unable to participate amicably, a lawyer tends to only add to the tension and hinder the couple’s ability to reach an agreement.
Another exception to the need to hire a mediation lawyer is when one disputant is unable to afford a lawyer. In every state that has an established mediation program, it's a well established rule that both parties bring a lawyer to the mediation, or neither party can bring their lawyer. Keep in mind that many “settlements” reached in a court appointed mediation setting are not even what lawyers would consider a settlement. While lawyers are very useful in complex cases where there are real money damages at stake, it's often best to avoid the expense and headache of using attorneys during a mediation.
Although no lawyer is "required" in a mediation, even if you and all the other disputants agree to mediate before there is any lawsuit, having advice from a lawyer makes sense. Any agreement you reach in the mediation may have legal consequences. We recommend that you check with a lawyer before you go to mediation, and definitely before you sign any agreement.