I was asked to write this article from the perspective of a non-attorney Divorce Mediator. Divorce mediation, as with a traditional divorce, tries to achieve the same end result, a set of agreements that are equitable and can be lived with by both parties. Where they differ sometimes is that mediation is also about helping people have a somewhat peaceful, equitable, cost- effective divorce that keeps their children’s best interests at the forefront of the entire process. Some might say a “win/win”, but for those of us who have seen the sadness of divorce, “win/win” might be too strong to associate with divorce. This in no way means that these are not also the goals of a traditional divorce, however, in mediation, they are an inherent part of the process.
Non-attorney mediators bring to the table the benefit of never having taken one side in a divorce and not having an ethical obligation to one person. In my research in speaking with numerous family law attorneys (vast research being lunch and coffee meetings), I have found some who freely admit they cannot be a neutral nor do they want to, it’s not part of who they are. To me, this is very important for a number of reasons, the most important one being, knowing your limitations and where your skills can be best utilized.
In the past, and to some extent still today, family law attorneys have tried to be everything for their clients: attorney, financial advisor, accountant, therapist, mortgage expert and so forth. Though it is noble, this “jack of all trades” attorney has somewhat given all attorneys a bad name in the eyes of the general public. A non-attorney mediator doesn’t have to worry about the stigma of having to do it all and be everything for their client. We are trained at resolving conflict and helping our clients reach lifelong agreements that make sense to them. Referring to other professionals during a divorce is seen as a good thing. However, for some attorneys, it is seen as a weakness. As mediators and/or attorneys, what is more important, doing it all for someone but not being the best, or referring to professionals trained in mortgages, taxes, finances, business valuation, etc. Mediator’s expertise lies in his or her ability to resolve conflicts, teach empathy and work through problems in a peaceful manner. Mediation has the ability to provide an arena for couples to talk to each other when going through the divorce process, something thing that does not typically happen in a traditional divorce. You, as an attorney, are then brought in to focus on the aspects of the case that require legal knowledge and individual attention.
A majority of divorces are simple to resolve, especially those resolved through mediation. However, divorce can get cloudy when phrases such as: “drawing your line in the sand”, “taking your spouse to the cleaners”, “fighting in court”, “bad parenting”, “abandonment” are used. Mediators do their best to keep these words out of the divorce process; they only add fuel to the emotional fire that is divorce. Sadly, people assume that all family law attorneys want to add fuel to the fire. This in turn gives the overall majority of good family law attorneys a bad name and pushes people away from contacting them for divorce mediations. I have had numerous clients call me with one question, “Are you an attorney?” Once I say no, they are more than happy to talk to me. When asked why this was their first question, they usually say because they do not want to fight and all attorneys want to do is fight and charge a lot of money for nothing. As a divorce mediator with a number of family law attorneys I consider friends and colleagues, I find this sad and not fair to those attorneys who are settlement-minded.
In my experience, money is the number one reason why people do not want to contact a Divorce Mediator who is also an attorney. Even if their hourly rate is equal to or less than mine, they still feel that the attorney will try to run up the charges with unnecessary work. People feel going to an attorney/mediator is the same as hiring an attorney to represent them. Non-attorney mediators don’t have this preconceived problem. The only way to change this is to change people’s views about attorneys and the motives behind what they do.
In most mediated cases, the law and a complex legal background aren’t typically necessary. This is in no way meant to imply that this knowledge isn’t very important. There are many divorce cases where an expert knowledge of the law is invaluable.
However, for non-attorney mediators, having colleagues who are family law attorneys is a great asset. They provide non-attorney mediators with changes in the laws that are important for mediation. They are also great for our legal questions. Being able to refer to a family law attorney when a legal opinion and/or legal advice is needed, is also easier for non-attorney mediators. We are neutral and skilled at not taking sides. Looking at the divorce from one side vs. the other has never been part of our practice. I enjoy working “with” family law attorneys and have found that my clients appreciate and benefit from the working relationships that we have.
As I write this article, divorce laws are changing. New Supreme Court rules are making mediation mandatory, in all but limited circumstances, when children are involved. This applies to both pre and post decree cases. Everyone in the A.D.R. community applauds this decision.