Join us as we unpack the essential roles, differences, and overlapping concepts of these legal representatives and how, with their assistance, successful conflict resolution is achievable. We explain how attorneys in the "Settlement Counsel" role can work directly on their client's behalf to achieve an out-of court resolution, and how attorneys in "review Counsel" role can support clients engaged mediation. Attorneys can be invaluable guides in while navigating the complex terms of divorce agreements in either role. We underscore the importance of finding a lawyer who not only respects the client's wish for a peaceful resolution but is also well-versed in the non-adversarial approach. And if you're about to embark on a divorce mediation process or other non-adversarial process, you won't want to miss our discussion on selecting an attorney who honors agreements, asks the right questions, and focuses on the journey rather than potential court battles.
Join us as we unpack the essential roles, differences, and overlapping concepts of these legal representatives and how, with their assistance, successful conflict resolution is achievable. We explain how attorneys in the "Settlement Counsel" role can work directly on their client's behalf to achieve an out-of court resolution, and how attorneys in "review Counsel" role can support clients engaged mediation. Attorneys can be invaluable guides in while navigating the complex terms of divorce agreements in either role. We underscore the importance of finding a lawyer who not only respects the client's wish for a peaceful resolution but is also well-versed in the non-adversarial approach. And if you're about to embark on a divorce mediation process or other non-adversarial process, you won't want to miss our discussion on selecting an attorney who honors agreements, asks the right questions, and focuses on the journey rather than potential court battles.
Welcome to Mending Fences, a podcast about effective ways to communicate and live with differences. I'm Patrice Bremener.
Speaker 2:And I'm Jen Hawthorne. We're both family law mediators and collaborative law attorneys, but our conversations go well beyond family law. We explore the personal, interpersonal, legal and cultural impact of conflict. Hi, and welcome back to Mending Fences. I'm Jen Hawthorne-Kelsey, and I am joined today by Patrice Bremener. As always, hi, patrice, hi Jen. Today we are going to talk about something that I think we've touched on in prior podcast episodes, but we've spent a ton of time talking to you about mediation and collaborative law, and really it's a spectrum of out-of-court process choices, so we want to focus today's conversation on what does it mean if you're hiring review counsel, and how is that different from settlement counsel? Because as you navigate this conflict resolution world, you're going to hear each of these terms and they do have different meanings, patrice, what does review counsel mean to you?
Speaker 1:That's a really good question, jen, and I think, before I jump into a definition, I want to kind of highlight more of what you were saying in terms of the spectrum. So there are a lot of different ways that people can make really good use of legal counsel and stay out of court Agreed, and some of it's going to fall into these definitions, but sometimes these definitions can overlap and really be part of that spectrum. So I think it's just really good for people to know if you hire an attorney, it doesn't mean that your amicable, non-adversarial dispute resolution process is going to somehow blow up. It just depends on who you hire and how much you make clear to them what you want. That's right. So, review counsel I do a lot of this kind of work and I actually really like it and to me my definition may be different than yours or other people's, but it's almost always in a setting where there's a mediation going on.
Speaker 1:I'm not the mediator. So my client is one of the spouses and they're attending mediation with someone else, but they're working with me outside of that mediation and they can use me as much or as little as they want to, but I'm there to help review with them their options, review what they might be bringing up in mediation. I might meet with them before the mediation begins to kind of review in a big overarching way like how the law might apply to their situation and help them get kind of a context, a legal context, for the conversations they're going to be having. They might contact me off and on throughout the mediation as things come up that they want to understand more about from their individual perspective. Or I might not hear from them for months and months and months and they might come back to me at the end and say we're done and we've reached an agreement and I want you to read it before I sign it.
Speaker 1:And I think sometimes when people use the term review counsel, that's what they're talking about. Is that at the end, having the documents reviewed, which is really important? And when I work as a mediator I really almost insist that my clients hire at least at a bare minimum counsel to review the document before they sign it. So when you say review counsel, what do you mean?
Speaker 2:So when I say review counsel. I use that almost interchangeably although I agree with that distinction at the end. But I use it almost interchangeably with the idea of mediation, coaching from a legal perspective. So as my clients are going through mediation with somebody else, they hire me on a limited representation basis, which is a term that to the court, means that the attorney is working with them just on specific pieces of a case, and so my limited representation is just saying my work is out of court. If, for some reason, you end up in court, that's most likely not going to include me. If it does, then we're going to talk about it and re-execute another agreement.
Speaker 1:Yes, an agreement between you and the client Right, that would be right.
Speaker 2:Yes, that is exactly what I mean. Okay, apologies to listeners if that's confusing, but I mean exactly what Patrice described as review counsel. When I am review counsel or a mediation coach whichever you want to think of it as someone's going through mediation, there is no one specific way that looks. It is really specific to my client.
Speaker 2:For some clients, I've met with them before and after every mediation session to prep for it, debrief from it, and then we keep going and ultimately I review the separation agreement, or even sometimes, if their mediators not an attorney it might look like drafting from a memorandum of understanding to a separation agreement and making sure that they have that document that they need to go to court. It also has looked like someone will have a 15-minute call with me and I don't hear for them again for six, nine months, 12 months. Sometimes it's been over a year. During that time they've been really working hard with their mediator and their spouse to come up with an agreement and they're saying okay, we have this document that I think is ready to go. I need you to look at it. Usually, I also ask for financial statements at the time I'm looking at the separation agreement because, while I'll review an agreement without it and read it and tell them my thoughts. It also has to have a big asterisk saying I don't have all of the information to really give you a full opinion.
Speaker 1:I insist that I have that. So I wait until all of that's available, and the reason being is that I want to look at what the judge is going to look at. So I want the full package and I don't need all the other filing documents, but I want the separation agreement, each spouse's financial statement, any child support worksheets, if there are any. I want to see exactly what the court is going to be looking at and so that I can give them that level of feedback.
Speaker 2:Right, that is always my preference too. I have worked with clients before and I'm curious if this has happened to you where they come in and want that review council and what it actually ends up being is that I've answered their legal opinion questions throughout the process, but I never see the full agreement because, for whatever reason, they're confident by the time they have an agreement and they actually don't use me for review council. Just why? From my perspective, it bleeds together with mediation coaching, because it can be one or both.
Speaker 1:I don't know if I have ever had that. I honestly yeah, I think I've dropped my head of a time where I didn't end up reviewing a final agreement. Yeah, I can't think of one, hmm. So what about settlement counsel? How is that different than review counsel from your perspective?
Speaker 2:So, from my perspective, what makes settlement counsel different is, at least initially, folks aren't in mediation. So what ends up happening is a client will come to me and say I'm not sure mediation, or even collaborative, is the right fit, but I also don't want to jump right to litigation. What else are my other options? I'll explain that. What I can do as a lawyer is help them to negotiate the terms of that agreement. Sometimes what that looks like it really depends, from my perspective, on whether the other spouse is represented or not. Sometimes, when I'm settlement counsel, if the other spouse has an attorney too, I'm reaching out right away to the other spouse's attorney and saying hey, this is what my client's telling me about process. Are you open to working together out of court to have this conversation? What, depending on who the other attorney is and their openness to that, it can look very different.
Speaker 2:Sometimes it looks like in the way I describe it to all of my clients is, can look really a lot like what you see in the media, where I'm talking to my client, the other attorney is talking to their client.
Speaker 2:As attorneys, we're talking to each other and starting to come up with the terms of that agreement. Or, if the attorney on the other side is also a collaborative attorney and for some reason, just the full collaborative process isn't the right fit For our clients. It might look very much like the collaborative process just completely without a coach and without that same process agreement, but it might include a lot of four-way sit-downs and talking through the agreement and problem-solving together and inter-space conversations and all of that. So it really depends on who the two professionals are what that might look like. But from my perspective the big difference is that when someone hires me as settlement counsel, I'm taking a bigger lead in how that process is happening and making sure that there's forward motion. When someone hires me as review counsel, I'm really just sitting in the background waiting for my clients to come to me. It is true that they can bleed into each other.
Speaker 1:Yeah, so settlement counsel for me.
Speaker 1:I might not say exactly what you just said about.
Speaker 1:I don't think I automatically take a bigger lead, because I think it just depends on the situation, because I've had cases where I was I don't know what I'd call it Maybe I was a settlement counsel, but the clients were talking to each other and maybe the other spouse doesn't have an attorney.
Speaker 1:So all the conversations are happening spouse to spouse but my clients coming back to me saying, okay, we've agreed on this part. And here's where we are now. And I've had a lot of these cases where I've taken the lead in drafting yes, so we might draft an outline or start to draft parts of a separation agreement for my client to take back to their spouse to discuss, and that the other spouse might end up hiring an attorney at some point or not. But it gives people the ability to work informally with each other and really do it at the kitchen table. And I can't represent both of them, obviously I can only represent one person, but at least my client has the benefit of counsel and advice along the way, so I can be doing the reality check type conversations.
Speaker 1:It's like that's great that you've come up with a parenting plan, but the court also will need these details or whatever as they're going along. So it's not. I mean, there's a lot of different reasons why people might do it this way. Maybe one of the spouses is really ready to move forward to divorce and the other person isn't. They're not agreeing to go to mediation, they don't want to engage in that kind of a process, but they'll have these kinds of conversations and I mean I've had cases like this, jen, where I've never talked to the other spouse.
Speaker 2:I don't know that I probably have had. I can think of one actually, now that I'm really processing clients, where my client came to me and said my spouse won't engage in mediation, They'll have limited conversations with me about settling, but I don't want to go to court. And you're right, that does look different than even what I described as settlement counsel, Because often in those cases it starts with a conversation between me and my client of what are my client's goals, interests, needs and where in the process do they want to start, Because I have had cases where I initially draft a separation agreement based on my client's terms and then they share that with their spouse. Sometimes I have shared that with their spouse who's unrepresented. So it really is a it's an individual, Very flexible Right. It's flexible and it's crafted to meet the client's needs.
Speaker 1:Right. So all of these I mean, whether we're talking about review counsel or settlement counsel, their terms that we use, hopefully to be helpful because they're descriptive but they're not limited, they're not really as concrete as they sound Right, and I think that's the takeaway is there are a lot of ways to engage an attorney. If you've hired someone that you're a good fit with, who understands that your desire is to remain non-adversarial and to peacefully, as much as possible, go through this process, there are lots of ways to use attorneys to get there, and that's two of them, right, but they do, they do overlap a lot or they can and you can start as you can start.
Speaker 1:I can start a case as review counsel and end up becoming settlement counsel, or vice versa. I've had to go both ways, where we start off as I start off as settlement counsel, but then the other spouse right they end up in mediation or sometimes it.
Speaker 1:You know, it's like you said. I might draft a separation agreement and then my client shares it with their spouse and then the spouse says well, I think I want to hire an attorney too. I didn't think I wanted one, but now I kind of want somebody to look at this and they might ask for my recommendation. I mean, I welcome it when that happens because I can give them a list of folks who I know will honor their the hard work they're doing outside of court and work with them to try to keep that hard work intact.
Speaker 2:Right, I think sometimes people are scared of that switch if they're coming out of mediation and they both have attorneys and it starts to feel more like folks are settlement counsel and like they're switching to lawyer negotiation. Sometimes I think that can feel scary because it does feel to clients. A lot of times I think like it's going to become more adversarial. So that's where you know we just want to remind everyone listening like there are lots of attorneys like Patrice and I out there who are really focused on the out of court work, who are committed to helping you come out and stay in a non-adversarial process. Just because lawyers are involved, the hostility doesn't have to Right.
Speaker 1:And it all has to do with the questions that you're asking. Will this attorney honor the process that we've chosen and help try to keep it intact, try to keep our agreements Right?
Speaker 2:Yeah. So if you're not sure, if you're sitting out there and you're not sure what type of attorney you're interviewing, the best way to clearly identify that you're working with someone who is going to help you honor the agreements, and the approach that you took initially is to make sure that that person that you're working with is asking you why, not just what is the agreement? But okay, I understand the agreement. Now, how did you get here? Why was this? The solution that you two arrived at? Your professional who is representing you, your lawyer, should be asking you the same kinds of questions with the same curiosity that your mediator did, and that's how you know that you have an attorney who's really focused on that and not just someone who's gathering facts to try to make sure it fits a cookie cutter model that they've seen before or thinking about.
Speaker 2:If this goes to court, what will it look like? Yeah, very good. Yeah, good question. You're welcome, patrice. Let's keep talking.