I often speak with couples who mistakenly think that the same attorney can mediate for them and then help them process their divorce. Ethically, this is not possible under standards of conduct for mediators or for attorneys. A simple way of looking at the professional ethics of the matter is like this: An attorney always represents a client. Thus, an attorney always takes sides. A mediator is always neutral. Thus, a mediator never takes sides. It’s really that simple. The professional is either neutral or they’re not, and there is no in-between.
If you would like to verify this for yourself, refer to Rule 1.7 of the Attorney’s Rules of Professional Conduct. A divorce proceeding by definition involves two parties who have a “versus” in between their names in a court pleading. Rule 1.7 provides that a client may not waive potential conflicts of interest in such cases. A mediator who undertook to act as an advocate in the same case would be violating important principles of mediator neutrality. Or, an attorney who acts as an advocate but then attempts to mediate some point of disagreement, by posing as a neutral, would also be committing a blatant violation of professional ethics. In short, there are attorneys who are qualified as mediators and mediators who are qualified as attorneys, but it is absolutely forbidden to act as mediator and attorney in the same case.
Because of these ethical requirements, it’s my view that the terms “mediating attorney” or “attorney mediator” are inappropriate ways to describe a person who has both attorney and mediator credentials. A person can be an attorney in a case, or they can be a mediator in a case. They cannot — cannot — be a mediator and attorney in the same case. I disagree with use of the terms “attorney mediator” or “mediating attorney” because it is unethical to wear two hats or to give the impression that one is wearing a different hat than they really are.
The thought of potentially hiring two professionals in a mediated divorce should not cause distress, however. It does not result in duplicate costs. Once a mediator helps parties reach agreement, attorneys can then draft the legal documents and take the legal actions to put the agreement into effect, if the parties desire.
Mentally, a divorcing couple is well served to distinguish between the process of reaching a divorce settlement, versus the process of obtaining a divorce decree. Clients who jointly utilize a mediator and then consult with separate attorneys are simply separating out two different professional roles that are easily confused. The mediator’s role is to help the couple reach a settlement agreement fairly and cost effectively. Once the agreement is reached, the court process of achieving a simple, uncontested divorce is the role of the attorney.
The model of “unbundled services” is one in which the mediator is engaged to help you reach agreement and then the attorney is engaged for the court process of having that agreement made into a court order. Paying for these separately costs no more than keeping them lumped together. It may, in fact, be more efficient to pay each professional to perform the duty they have particular expertise in.
Here’s how it works in my practice. When a divorcing couple is using another mediator, I am happy to wear a “lawyer hat” and support their mediation in two ways:
- First, I am happy to give legal advice (which the mediator cannot give). I do this on an hourly basis, with no retainer required.
- Second, after agreement has been reached I am happy to act as a representaional attorney to help achieve court approval of the divorce papers. To do this, I take whatever memorandum of agreement I’m provided, use that to draft a legal separation agreement, and represent one party to take the steps necessary to have the agreement made into a court order.
- A third option in which I will wear a “lawyer hat” is in the case of collaborative divorce. (In collaborative divorce, a mediator is not generally used. Each party has their own attorney who negotiates on their behalf, but everyone agrees that the case will be settled outside of court.)
In other cases I wear a “mediator hat.” When I act as mediator, I help couples reach a comprehensive divorce settlement agreement. I then draft the agreement with whatever level of specificity they desire. This agreement is then passed along to the person with courtroom expertise, a representational attorney, who will take the steps necessary to have the agreement incorporated into a divorce decree. If clients desire, I will refer them to attorneys whom I believe are trustworthy and professional, to provide these unbundled legal services to my clients. Or, clients may choose any attorney they like.
The proper use of professionals within their appropriate roles helps keep mediation safe for parties. The goal of a mediated divorce is not be be “cheap” or to “cut corners,” but in fact to provide a better process and a better result. Attorneys are used for representation and advice. Mediators are used to facilitate agreement that reflects the parties’ unique values and circumstances. All this can be accomplished quite cost effectively, through use of unbundled services. The use of a combination of mediation and unbundled legal services does, generally speaking, save couples a “bundle”. And, done properly, this more peaceable and cost effective divorce can be achieved without the feeling of betrayal that can happen when a party who thought their mediator was neutral finds out at the very end that this person was in fact acting as an attorney and representing the “other side” during their divorce negotiations.