Why Can’t Your Mediator Be Your Lawyer?

In family law mediation, the mediator’s job is to facilitate resolution of the divorce.  In other words, the mediator will manage and coax a conversation in which custody, child support, property disposition, alimony, health insurance, and taxes are settled.  The mediator may reflect values, reframe issues, and ask pointed questions to reach settlement.

However, there are several things a divorce mediator cannot do because it would be a conflict of interest.  First, a mediator is not supposed to give either party legal counsel.  For example, the mediator cannot tell Wife that she should file a Motion to Compel because Husband has been non-compliant with temporary child support, nor can the mediator advise Husband to not move in with his new girlfriend because it will impact his rights to receive alimony.  It is a conflict of interest to give this type of guidance to one or both parties, while also mediating. 

Second, a mediator technically should not draft a Separation Agreement for the parties.  Drafting a legal document, such as the Separation Agreement, is part of legal representation.  If the mediator drafts it, who is she drafting it for?  One party?  The other?  She can’t draft it for both of them because that would be a conflict of interest.

You may find divorce mediators who are willing to smudge these lines, but be careful.  The court might not accept a Separation Agreement “mediated” in that manner.  To prevent trouble, hire an attorney in addition to your mediator.  Your attorney can answer your legal questions and draft the Separation Agreement for you.  That way, you don’t have to implicate your mediator in a conflict of interest.  And, as a bonus, the court is more likely to accept a Separation Agreement where both parties had counsel.  It might seem more expensive to hire a mediator and an attorney, but it saves you the cost of a Separation Agreement that breaks down before the court.   

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