When a divorce case is submitted to the family law mediation process, the parties sometimes will have their attorneys present, and sometimes will not. Most mediators will not insist on the attorneys being present or on the attorneys being excluded from the process. However, it is also the case that most mediators will require that either both parties have their lawyers attend, or neither. Since the foundation of the mediation process is a balance of power, and an even playing field, the presence of an attorney for one party and not for the other inherently throws off that balance.
One disadvantage of having attorneys attend mediation is the cost to the parties for not only the mediator’s time (usually billed hourly) but the attorneys’ time as well (also usually billed hourly). One disadvantage of excluding attorneys from the mediation session is the prospect that one party (or both parties) consulting with the attorney AFTER the mediation session will thwart any agreements reached during the mediation.
Commonly, the parties agree in advance to the presence, or absence, of counsel. If there is disagreement about this issue, the mediator will likely weigh in to recommend how to proceed; oftentimes based upon how many issues need to be mediated, and how complex the issues are. If there are many contested issues, or any complex issues to be addressed, the mediator is more likely to encourage the attorneys to attend mediation with the parties.