This is the conclusion of our three part series of articles highlighting key issues and addressing common questions about the use of alternate dispute resolution (ADR) methods like mediation in family law cases involving divorce and paternity. If you are interested in these issues, you may find it helpful to read the prior installments before reading the information in this final installment.
Who is involved in the ADR mediation process?
Typically, the parties to the divorce, their attorneys and a neutral person serving as a “settlement facilitator” are involved in a typical mediation. The role of the settlement facilitator is to suggest solutions and help move discussions forward. This person may be viewed as similar to a referee or a judge, but the person will only make suggestions and propose ideas without the authority to force either side to accept these proposed resolutions to issues. The person functioning as a facilitator also may not represent either side; rather the person must remain neutral. The court will have a list of facilitators who will be licensed attorneys with a minimum of five years of experience in family law issues as well as training and experience in mediation. However, the parties are free to pick someone who is a non-attorney if they think that the person can expedite settling their dispute.
My spouse has an attorney who is drafting an MSA based on our agreement so is there any reason for me to get an attorney?
Divorce attorneys have an ethical obligation to avoid conflicts of interest, which is taken very seriously. This essentially means that an Albuquerque Divorce Lawyer may not represent both spouses or parents in a family law matter like a divorce or paternity action. If your spouse has an attorney who is preparing a marital settlement agreement, it is important to keep in mind that the person is “your spouse’s attorney” so he or she is not watching out for your best interest. Even if you believe that a New Mexico Marital Settlement Agreement (MSA) prepared by your spouse’s attorney accurately reflects your agreement, legal verbiage can be unclear. When you do not have your own attorney, you are effectively being asked to trust that the other attorney has not done anything that will be prejudicial to your interest for the benefit of your spouse. Whether you retain an attorney to represent you in court or merely to give you legal advice regarding the MSA, it is not a good idea to sign a document that has such serious and long-term consequences as an MSA without seeking legal advice.
While it may be acceptable to have an attorney draft your MSA who does not represent either party, this person will need to function as a “scrivener” who does not represent either party. Even in this situation, each party will benefit from obtaining legal advice to assess his or her rights as well as the resolution of issues reflected in the divorce agreement. It may even be acceptable to enter into a MSA prepared by your spouse’s attorney, but parties that do so without seeking independent legal counsel are taking a significant risk.
The above information is provided to illustrate general principles of law and should not be interpreted as a specific legal opinion on an individual case. You should contact experienced legal counsel to get specific legal advice that is based upon your specific circumstances.
If you have questions about your alternate dispute resolution options for settling family law issues in New Mexico, the Jay Goodman & Associates offers a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your options. Call us today to schedule your free consultation at (505) 989-8117 to learn about your rights and options.
Comments are closed