Lawyers in the Mediation Process

by William H. Donahue, Jr., Esq., APM

Many of my clients are surprised when I tell them that they each should retain an attorney even though they are mediating their divorce. Lawyers and mediators play very different, but complementary roles in the mediation process. The mediator facilitates negotiations while the attorney offers specific legal advice and counsel.

Mediation is based on some very simple, but important principles. The first is that people have the right and the ability to resolve their disputes, including divorce disputes. The second is that most people are more likely to abide by agreements they created than in decisions that are made for them. Wouldn't you feel better if your boss let you and a co-worker come up with a solution on how the best assignments were to be given out than if he or she simply told you who would do what job?

Another important mediation principle is that a neutral third party like a mediator can help people resolve disputes they may not be able to resolve by themselves. A mediator does this mainly by teaching negotiation techniques, and by providing a safe structured, confidential place to negotiate. By helping my clients separate the issues from the emotions they feel about each other, and by showing them how to look at specific problems differently than they had before, I can help them open lines of communication and find solutions they may not have been able to find on their own. But to do this effectively, I need to remain as neutral as I can. If either party feels I'm biased either for or against them, the process will not work well.

As a mediator, I explain general principles of divorce law to my clients and point out legal issues they may not think of. But I do not give legal advice on a specific question. I do not advocate for them, and I never tell them what I think they should or should not do, offer, give up, accept or agree to. That is the role for each client's attorney to play.

There are some important reasons why a mediator should never take on this role. From a legal standpoint, advising a client on the law specifically as it applies to his or her case and suggesting what actions the client should take is really representing the client. Only a licensed attorney can do this and even a licensed attorney can't do it for two people getting a divorce. So even though I, like many mediators, am a licensed, practicing divorce lawyer, I cannot represent my mediation clients either together or separately by giving them legal advice any more than I could represent them by filing documents for them or accompanying them to court. A mediator who did this would, in effect, be advocating for or representing both clients, and that would be a conflict of interest.

Choose Your Attorney Carefully
Whether you hire an attorney before you start mediation or when you are finished, you need to choose your attorney carefully. Any good divorce lawyer should be a skilled and aggressive litigator. But he or she should also know how to give advice and know how to respect a client's ability to make decisions and negotiate a fair divorce. Lawyers who only know how to fight, and who advise clients that the only way to protect their interests is to wage war, can make mediation difficult or impossible. Mediation depends on people being able to view the divorce as a problem to be solved in a way that provides the greatest benefit to both spouses. Litigation depends on each side taking opposing sides on each issue, and then demanding and fighting for the most they can get at the expense of the other. If you come into mediation conditioned by your attorney to believe that only the litigation process can work, you may be unable to mediate. Demands and strategic posturing work in litigation. They are obstacles to be overcome in mediation.

Because divorce is a legal event that has profound effects on people's lives for years, I strongly urge every one of my clients to have their agreements reviewed by an attorney. We agree at the very beginning of the mediation process that they should do this and that if either of their attorneys recommends changes in the agreements; they will come back to mediation and try to resolve the new issues. For most people, this works well. They can negotiate freely and creatively without feeling they will be bound to agreements until an attorney reviews them and finds them to be fair and reasonable.