July 18, 2013
A Mediator Educates, Not Represents
It’s not uncommon for people to contact my office requesting that I “represent them and their spouse” in mediation. Inevitably, a vision of having to tearfully cut up my Bar card passes through my mind, as it’s against the law to represent both people in a divorce. But I do understand what people are really asking: “Can we work with you, an attorney, but have you work for both of us, not just one of us?”
And the answer to that question is yes. A mediator is a neutral professional who works for both people. A mediator is on the side of compromise and agreement. A mediator, even one trained and experienced as an attorney, abandons all notions of right/wrong, good/bad, fair/not-fair, and instead relies on clients to make those assessments for themselves throughout the mediation process. A mediator educates clients with the goal of helping them understand the entire legal landscape and all the implications of their situation and of potential agreement options.
In a traditional legal process, when an attorney represents a client, the attorney is active in the legal process, developing approach and making decisions as to acceptable outcome—and then handing the result to the passive client. In contrast, when a mediator works with clients, the mediator is active in educating the clients, and the clients assist in developing the approach and then make all the decisions as to acceptable outcome. This difference is one that couples should weigh prior to deciding whether to enter mediation or choose an attorney for their divorce, because the differing roles of both the professional and the client in a legal process as compared to a mediation process is enormous.
Mediation is a process that empowers clients to apply their own values, views, and priorities to their agreements, without any interference from the mediator, while at the same time fully understanding the law and their legal options. In contrast, some people describe the traditional legal process as disempowering to clients, leaving clients with a result that doesn’t work well after a long and often expensive battle.
So questions to consider if you’re contemplating divorce: do you want to be educated and make decisions for yourself; or do you want to hand your situation to attorneys and have them make decisions for you?