Divorce Lawyer or Mediator? — You Can’t Have It Both Ways

A friend recently told me about what a bad deal she got in her divorce.  She entered into a mediated settlement but the terms turned out to be very unfair.  When I asked whom she used to conduct the mediation, she told me that her husband’s attorney acted as the mediator.  No wonder the settlement was one-sided!  It certainly wasn’t my friend’s fault.  How was she to have known that it is improper and unethical for an attorney who represents one party to also act as a mediator for both sides in a divorce?  She trusted the lawyer when he said that he could act as an impartial mediator.  But, in actuality, that lawyer had a serious conflict of interest.  He was retained to represent the husband and, as such, his job was to act as a zealous advocate for his client – to take his client’s side and fight for him, if necessary.  A mediator, on the other hand, must be completely impartial.  He or she must act as a neutral third party; someone who doesn’t take sides.  The job of the mediator is to help the parties negotiate an agreement that is as fair to everyone as possible.

It is unethical for a lawyer to represent both parties to a divorce, or to act as a mediator while he is representing one of the parties.  The attorney is allowed to meet with both sides and discuss the issues, or even try to settle the case, but he must make it clear that he is acting in the best interests of his client and that he is not a neutral third party.

I have represented clients in divorce cases for almost thirty years.  As an attorney, I am a zealous advocate for my client’s best interests.  My family law practice also includes mediation; and as a mediator, I am a compassionate, impartial professional who works hard to help the parties fashion a fair settlement.  But we can’t wear two hats at once:  We can act as an advocate — or a mediator — but not both.  Don’t be fooled by any lawyer who tries to tell you differently.

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