When your Mediator is not an Attorney

A large part of my practice is devoted to mediation. Over the years I have attempted to increase the number of mediation cases I do by trying to steer my potential clients into this direction if possible. Inevitably there is usually an element of anger which accompanies most divorces and for this reason mediation is still not the number one way which couples chooses to end their marriage. This of course is unfortunate but human nature being what it is makes the idea of turning a 30 year marriage into a corporate dissolution is somewhat distasteful to the masses. No matter how much they may want to end the marriage amicably, there is always still a part of these individuals that needs to lash out at their partner for whatever wrongs they feel may have befallen them within the marriage.
Thus only the couples, usually, who have been through extensive therapy either on their own or in couples counseling are ready to mediate to end their marriage. The pain and hurt must be expelled in some forum. The best forum of course is in a counseling session NOT in the mediation room. This brings me to the topic of today: what happens when you mediate with a counselors and not an attorney?

Many non attorneys advertise mediation services for divorce. I find this whole confute rather disturbing. To me a non attorney attempting to mediate a divorce is tantamount to an attorney doing heart surgery. If you think I am being dramatic, let me lay out the perils as I see it:

The mediation process is meant to circumvent the need to litigate a divorce in court. The parties however, come to a binding agreement which effects their rights and the rights of their children for years to come. Non attorneys by law, are not permitted to represent clients in court, just as lay people are not permitted to operate in an operating room without the appropriate training or license. Non attorneys are not trained in the law and as much as they read up on it, unless they are licensed, they may not practice in a courtroom. Why then should they have the right to practice law in their own offices and call it "Mediation"?

A non attorney cannot by law advise clients as to their rights or give legal advice. In this case, how then can a non attorney properly mediate a divorce? They cannot. A non attorney mediation or what should be termed, couples counseling should in fact be the first step in ending the anger between the couple. This session should not produce anything more binding than a mutual agreement to then proceed with legally binding mediation with a trained and licensed professional.

Non attorneys certainly have a place in preparing people to mediate, but they really have no business discussing terms of mediation or the laws which will bind these individuals. Many non attorneys claim to "work with attorneys" to expedite the mediation process. Again I make the arguments that non attorneys have no business making themselves a part of any legal dissolution between the parties. They are not trained to give proper advice nor are they allowed by law to do so. How then may these couples reach an agreement without all of the facts in front of them? The answer is, that they make ill informed decisions by relying on non attorneys who attempt to cover themselves by telling each party to take an already drafted agreement to individual lawyers for their review.
By this time the couple is usually so burnt after what they feel has been fruitful negotiation that they are wary about upsetting the applecart and usually shy away from having the agreement reviewed. What winds up happening is that these poor ill advised souls find themselves with agreements which either are impossible to live up to or are so one sided that down the road they are forced to attempt to over turn them in order to reach a more equitable agreement.
Of course the problem they face is that it is usually difficult to over turn any agreement already signed and sealed without a showing overt onesidedness. This leads to the very litigation they were trying to avoid in the first place.

My advice therefore for couples interested in terminating their marriage: Go to couples therapy or individual therapy first to cleanse yourself of anger and irrational emotion. Then find a good attorney to mediate a divorce agreement which you can enter into with a clear head and full information as to your rights and the rights of your spouse.