Choosing the Right Divorce Mediator

Choosing the Right Divorce Mediator by Susan Ingram

{3:48 minutes to read}

If you’re choosing mediation for your divorce, in many instances it makes good sense to use a mediator who is also an attorney. An attorney/mediator who specializes in divorce law will be knowledgeable of the divorce statutes and case law, and can (and should) share that information with clients. Then, when the couple is ready to proceed with having their settlement agreement drafted, the attorney can prepare the agreement for them.

On the other hand, if a mediator is not an attorney, that person can only prepare a summary of what was agreed upon in what is called a Memorandum of Understanding (MOU). Once the MOU is prepared, the couple then needs to go to an attorney to draft the actual agreement. This can increase the costs for the couple; they need to pay first for the MOU and then another fee for the agreement itself. It can make a lot of sense for a couple to choose the “one-stop shopping” approach, and have an attorney/mediator handle both the mediation and the preparation of the agreement.

But beware — there’s a proviso that goes along with this statement. You need to find an attorney/mediator who is truly committed to mediation, has the proper training, and has worked extensively as a mediator.

You cannot assume, just because an attorney has the legal credentials, that he/she automatically is a good mediator. Indeed, there is a whole different mindset in practicing as a regular lawyer and practicing as an attorney/mediator.

Lawyers are trained to have laser vision and focus exclusively on the results they want for their client, typically disregarding the needs of the opposing client. This is the Win (for their client) — Lose (for the opposing client) approach that our litigation system fosters. But mediation, practiced properly, is a very different animal. It’s learning to bring a “softer perspective” to the work of helping couples, so that there’s no winner or loser; both participants Win.

Given the way lawyers are traditionally trained, this different approach doesn’t come easily. I, myself, found it challenging to feel fully comfortable with mediation 12 years ago when I switched from my regular legal practice to doing family and divorce mediation exclusively. Years of training, practice, and dedication to the concepts of mediation are required.

When couples are searching for an attorney/mediator, they need to do their research and sort out the attorneys who are just giving lip service to the concept of mediation. Often these attorneys’ websites extensively describe their litigation practice, but make only a quick reference to divorce mediation. Frequently, they will steer their clients toward litigation, or worse, they will do something that they think is mediation, but have no training or experience to back it up.

The true attorney/mediator brings that special quality of mediator mind, has a distinct calling for this work, and brings years of training, sensitivity, and experience to their practice. That’s the person you want to guide you through your divorce!

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