Most mediators will require that you obtain independent legal advice before you sign any settlement agreement. However, it is not necessary to have independent legal advice. A settlement agreement, if in writing, signed and witnessed is legally binding. However, it is possible for a Court to set aside any agreement where one party has not obtained independent legal advice. This reason is often cited as the reason in court documents when seeking to set aside a settlement agreement.
My preference is to have all of my clients obtain independent legal advice. This provides some assurance that you have been made aware of your legal rights, interests and obligations.
In most instances, spouses consult their own lawyers for advice on the issues raised during the mediation sessions. I encourage this. Often, I will ask spouses to obtain some advice on the issues that we will discuss at the next mediation session so that they are well informed for the mediation session. You can speak to your lawyer at any time. Often, where I believe it would assist the goals of mediation, I will, with your permission, also speak to your lawyers on issues raised in mediation.
As a general rule, if your lawyer is an experienced family law practitioner, he/she will encourage mediation if it is right for you. I work well with lawyers who encourage the mediation process and their clients who participate in mediation. If your lawyer does not support mediation, the chances of success in mediation is reduced and I will not likely get along with your lawyer.
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