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Should one spouse’s lawyer be used to handle the mediation?

July 17, 2017

Mediation is a process in which a legal dispute is sought to be settled through the active participation of a third party, known as a mediator. Mediation is becoming more widely used when it comes to divorce and related cases. If you are facing a divorce, you may wonder whether your spouse’s attorney should be utilized to handle a mediation of the case. Before specifically answering that question, understanding a bit more about the mediation process is important.

How Mediation Works

The parties to a divorce can agree to voluntarily submit to mediation. In the alternative, a judge in a divorce, or other type of case, can order the parties to submit to mediation. For example, disputes regarding child custody and visitation or parenting time are more frequently being mediated in this day and age.

The mediator is not a decision maker. Rather, the mediator works to encourage and direct negotiation between the parties. Ultimately, the objective of mediation is to reach a settlement of outstanding issues. This settlement is then committed to writing in what is called a mediation agreement.

The mediation agreement is then submitted to the judge presiding in the case for his or her review. If the judge approves the mediation agreement, it is incorporated into the final order of the court in a divorce or similar type of proceeding.

Unbiased, Independent Mediator

One of the key elements of mediation is that the mediator needs to be an unbiased, objective individual. The very idea of have an attorney for one of the parties to a divorce serve as the mediator in a divorce case runs counter to the necessity for a mediation to be independent and objective. This reality makes setting up an attorney to a party in a divorce case as a mediator an impossibility.

The Code of Professional Responsibility

Lawyers are professionally governed by guidelines that are known as codes of professional responsibility, or a similar title. The code of professional responsibility mandates that an attorney cannot accept a position or engage in conduct that runs counter to the interests of his or her client.

The code governing the professional conduct of attorneys, which is in place in all states in some form, represents another reason while the attorney for one party in a divorce case cannot serve as a mediator in that same proceeding. If an attorney did attempt to undertake such a role under this set of circumstances, he or she could end up facing disciplinary action from the agency that oversees attorney licensure in a particular state.

Mediators Possess Specialized Training

When considering engaging the services of a mediator, and in light of the question about your spouse’s attorney serving as a mediator in your case, you need to understand that mediators have specialized training. In fact, many mediators undertake significant training before they actually begin to provide mediation services.

The reality is that most divorce lawyers are not also trained as mediators. Although there are other issues that block your spouse’s attorney from being the mediator in your divorce case, the possibility also exists that the lawyer simply does not have the background necessary to truly provide actual mediation services.

Related Issue Regarding Attorney Representation

Time and again, a married couple who have decided to end a marriage make a preliminary decision that they can retain only one lawyer. They probably operate under the presumption, which is in fact a misconception, that they can share one lawyer.

In fact, even if only one lawyer is retained, that attorney will be legal counsel for only one of the parties to the divorce. The lawyer is legally bound to represent and promote the legal interests of only the party to the case that he or she represents. The code governing an attorney’s professional conduct specifically prohibits a divorce lawyer from representing both parties in a divorce case. If only your spouse currently has an attorney in your case, his or her lawyer should make it clear to you that he or she only represents your wife.

If you are seeking or involved in a divorce, you can never trust your spouse’s attorney to protect your interests. That simply is not the job of that lawyer. You are best served, and protect your own legal interests, by retaining your own divorce lawyer.

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