Mediation is the most practical and healthy choice for a person to make when facing a divorce. It helps you avoid the stress of litigation, saves you money, and helps you put the unpleasantness of divorce behind you as quickly and peacefully as possible. Generally, the agreements reached are more thoughtful and tailored to your individual circumstances, and your family’s circumstances, than the typical court judgment. As a result, the adherence rate to mediated agreements is much higher than that of adherence to court orders.
Perhaps mediation is not needed, if the lawyers can work together and settle the case quickly, amicably, and inexpensively. Quite often, being an advocate causes a lawyer to respond aggressively or initiate preemptive strikes that the other party finds threatening. It is difficult for a lawyer to take care of a client and play a meditative role at the same time. Also, when lawyers do most of the negotiating, the parties do not communicate directly to make their own agreement, which may also improve their interactions down the road. Using a mediator might be like taking out an insurance policy to maintain an amicable situation among all parties and counsel. It also affords the family the benefit of a trained innovative problem-solver. Finally, it has been suggested that the use of mediation can be a transformative experience that may actually improve the interaction and lives of the family members instead of just putting a settlement bandage on family dysfunctions.
Isn’t mediation just another form of dual representation, with all the limitations that such conflict situations carry? It is true that in preventive mediations involved in premarital agreements, adoptions, and putting together a family business, the mediator’s role of putting together and building harmonious relationships seems very much like dual representation (Section 2.2 of Model Code of Professional Responsibility). Unless there is a written waiver from all parties, a single lawyer must withdraw from representing two clients when conflicts appear irreconcilable. Conflicts, real or apparent, are generally present in virtually all dual representation situations.
As a neutral third party, the mediator represents neither party. This may be clearer in the mediator’s role of dispute resolver and case manager than it is in preventive mediation. The new Model Standards of Conduct for Mediators promulgated by the ABA, American Arbitration Association, and Society for Professionals of Dispute Resolution encourages all parties in a mediation to consult independent counsel. In many mediations, counsel attend sessions with their clients and participate at the mediation table.
