Do both parties need separate solicitors after mediation in a separation?

[Newyearbee]

Hello,

I am going through a separation and am starting mediation with my ex to figure out how best to divide our assets and child arrangements. Once this is summarised we will get it legally drafted by a solicitor as a ‘minute of agreement’. Does this then need to be run by another lawyer so we effectively have one each acting for us? Or can we just instruct one to formalise what we have decided in mediation?

We are trying to keep costs low while still doing things the right way and not expose either party to risk or a drawn out legal battle between opposing lawyers.

You need a consent order drafted. Not a minute of agreement. A consent order stands up in court as legally binding

Can a consent order be written up by a lawyer on behalf of both of you? Or does a couple separating still need to engage 2 lawyers (one each)?

It may depend which country you’re in. I’m in Scotland and we did pretty much exactly what you’ve described. We originally each had an hour with a solicitor of our own choosing to discuss our positions individually, then we used that information to help us decide how to split things. Then, once we’d agreed stuff between ourselves, we used the solicitor I had dealt with to draw up the separation agreement which included all the legal stuff.

There are two things that should happen now. First you should both take the details of what you have agreed in mediation to separate lawyers to get independent and expert advice on what you are agreeing to. Then if you both have this assurance that the agreement has been entered into knowingly and with expert advice, you pay one of the lawyers to draft the order.

The consultation with you respective lawyers will cover whether the agreement is fair and lawful. They might highlight elements they see as being unfair or unfavourable to you. This may be a feature of the agreement that you and you ex want. It is useful to be able to articulate why you both want this. The lawyer will likely then tell you agreeing to it is against his advice. That is your opportunity to reaffirm it is what you want and you understand his advice. There is a possibility that this advice could mean you reopen negotiations.

You will have your basis covered when you take the order to a judge. He may want to assurance you have taken advice and if you can state this you should be good to go.

This is what I hope to do (in England).
I have been advised that one solicitor can draw up the agreement, and that it is advisable (but not compulsory) to get the other solicitor to check it.

IMO, you should use your individual solicitors to review what you have agreed or decided. There’s nothing wrong with taking advice before you agree things but it is the agreement that the judge will be reviewing. If the judge has an issue with it, they will want assurance that you took advice based on the agreement not hypotheticals. They sometimes insist this happens before they sign it off.