So often clients ask how to go about hiring an attorney that will help them navigate their divorce so that the experience is as dignified and positive as it can be. My friend and colleague Andrea and her assistant Ellie do a beautiful job of outlining some of the key elements you want to keep in mind when assessing the right attorney for you.
Guest blog by Andrea Vacca, Esq. and Ellie Ackerman, Esq.
Previously a guest post on this blog by Wendy Samuelson, Esq. (“The Myths of Mediation”) regarding the importance of consulting with an attorney during the divorce mediation process may have lead you to wonder what exactly you should be looking for in selecting such an attorney. While any attorney with divorce and family law experience could theoretically serve as a consulting attorney, there are a number of characteristics that you might look for to indicate that a particular attorney would be ideal for consulting with you while you are in mediation. With the right consulting attorney, the mediation process can go quickly and smoothly, and ensure that the final agreement represents a resolution with which each spouse can feel comfortable and confident.
· Experience with Mediation – An attorney who is also an experienced mediator will understand the mediation process as well as the most productive way that she can assist you in the process. She will know that she is expected to take an advisory role in the negotiations, rather than directing those negotiations, and she will feel comfortable being called upon to provide legal advice and counsel only when you feel you need it.
· Aware of Role Limitations – A mediation consulting attorney’s role is to provide legal advice and ensure that the client is aware of his or her legal rights and obligations before mediation begins and certainly before signing an agreement. The earlier in the process that you meet with a consulting attorney, the more empowered you will feel as you make decisions and come to agreements during the mediation process. Your consulting attorney needs to understand what goals are most important for you to achieve through the agreement you will be signing and she needs to be willing to give you legal advice and guidance that will help you reach these goals.
· Willing to Help You Stay Out of Court – It is imperative that an attorney retained for mediation consulting respect and support your desire to settle the matter outside of court. Mediation is often selected by participants as a less adversarial method to resolving the dispute. An attorney retained to consult with a client engaged in mediation needs to be respectful of the mediation process and aware of the necessary concessions that come along with it. You may very well be willing to give more or receive less in mediation than you would give or get in court because you know it will achieve your overall goals. For example, you may be willing to accept less child support because your spouse is paying higher costs to transport the children between your two homes. Your consulting attorney needs to respect and understand your priorities. You do not want your attorney to be disruptive and detrimental to the process.
· Able to Educate the Client – While a consulting attorney should respect the mediation process and the ways in which it differs from traditional divorce litigation, it is important to note that none of these factors should come at the risk of the consulting attorney’s job as legal advisor. If the client is about to enter an agreement that is not consistent with the client’s legal rights, it is the consulting attorney’s responsibility to inform the client of that right. Similarly, if the consulting attorney believes an agreement to be unfair and actually detrimental to the client’s best interests, it is the consulting attorney’s responsibility to convey that decision to the client. While the ultimate agreement is up to the client, the consulting attorney must ultimately ensure that the client is well-informed of his or her legal rights and obligations.
· Open to Rejection of Advice – After educating you on the law, the consulting attorney must be aware of and accept the fact that you may decline to follow her advice. Mediation hinges upon each spouse’s willingness to compromise. The consulting attorney must inform the client of his or her individual rights and obligations and then be understanding if/when that client is willing to give more or receive less in exchange for what he or she wishes to gain from their spouse. Every family is different and will have different priorities for what their post-divorce life will look like. An attorney who respects the client’s right and ability to make the best decision for his or her family will make an effective consulting attorney.
Andrea Vacca is an attorney with a private practice in Manhattan that focuses exclusively on non-adversarial divorce and family law matters. After practicing traditional litigation-focused matrimonial law since 1992, Andrea became a family and divorce mediator in 2005 and a collaborative divorce attorney in 2006. Since then, she has turned her law practice away from adversarial litigation and toward representing parties in collaborative and cooperative divorce.
Ellie Ackerman began working part-time at Andrea Vacca, P.C. in 2011 while pursuing her law degree at Fordham University. She joined the firm full-time in January 2013, shortly after receiving her J.D. and passing the July 2012 Bar Exam. Her prior work experience in matrimonial law extends to collaborative law and mediation, as well as litigation.
