Saturday, December 5, 2009

Mediation without a lawyer?

Recently, the wife and I were having a conversation about a friend who had left her husband. She told me that they decided to have a mediator and skip the lawyer.  The idea was to save money.  I recall rolling my eyes and shaking my head.

Which lead me to post a questiion on Twitter - that only got one response and was about the same as my response.

Let me be clear:  in and of itself, mediation is not a bad thing and settlement is never a bad thing. What I am not so sure about is the selling of mediators as an alternative to lawyers.  Let me give an example from's Divorce Mediation page:

Divorce Mediation is an alternative to litigation (where attorneys fight one another for what their clients want.) Mediation, on the other hand, is an informal meeting with a neutral mediator and the couple working together cooperatively, calmly and fairly.
Not so very clear but this seems to imply no divorce lawyers are needed.  Which raises the question for me:  who is filing the divorce petition and preparing the Decree of Dissolution?

The mediator cannot unless they have a waiver from the parties of any conflict of interest (and assuming the mediator is a lawyer).  This leaves the task to either the parties or a lawyer.

If the mediator is not a lawyer, then the mediator cannot even advise the parties how to file.  Unauthorized practice of law, see?  For a lawyer-mediator, back to the conflict of interest problem.

If you plan on using a mediator to work out a divorce settlement, that is a good thing.  Just be aware that a dissolution of marriage is a legal proceeding which just means you need to be able to get that mediation agreement before a court.  Make sure you know how this last step will be done.

By the way, I do not think it any great difficulty to find a lawyer who will charge just for the necessary documents.  Just explain to them the need. 

Let me repeat that any settlement is generally a good thing and I would like to point out this paragraph from
According to the National Conflict Resolution Center, “Research shows that when you compare couples who have mediated their divorce with couples who go through an adversarial divorce, mediating couples are more likely to be satisfied with the process and the result, likely to take less time and spend less money, and are less likely to go back to court later to fight about something.”


Laurie Israel said...

I am a lawyer/mediator, divorce lawyer, and reviewing attorney for mediations. When I hear comments such as wanting to save money in a divorce(or any other legal matter by "skipping" the lawyer, I usually ask the person if they would take out their own appendix. Then they "get" it. Divorce, especially with a medium or long-term marriage, and involving children, retirement assets, and other complications such as businesses, almost always needs a professional lawyer -- either as a lawyer/mediator, or as reviewing attorneys for the parties. It is the rare divorce (very short marriage, no children, no or few assets) that sometimes could be done without a lawyer fairly and safely. In my state (Massachusetts) divorce is based on equity, and equity is based on "what is fair". "What is fair" is based many published cases where judges have answered the question "what is fair" under numerous factural situations. Although a layperson can read a case, a trained lawyer is more equipped after 3 years of law school and numerous years of practice to "get" the nuances of the case and put it into context with other cases. Lawyers also know what judges are deciding about issues (through personal experience in court hearings and by speaking with colleagues) on an anecdotal basis. This all helps the client (whether divorce clients or mediation clients) understand what is a fair result in their divorce. You can't really know what is "fair" in a vacuum. It may seem fair, but often it is not.

Sam Hasler said...

Thank you. Quite often I think what I write will be taken as self-serving and a comment like this takes away that worry.

Most states have based their divorce laws on the equity system. Hence, the 50-50 presumption of property division in Indiana.

Ms. Israel also made a point I started to and decided not to make for the sake of brevity - just because it is agreed to does not make it fair. There will be agreements arrived at through browbeating. These are not true agreements - and not one I would counsel my clients to accept.