Are There Benefits to Using Non-Attorney Divorce Mediators?

Non-attorney divorce mediators favor a peaceful resolution of divorce mediation, but their talents are complemented by advice from a family law attorney.

By Brian James, Divorce Mediator

From the perspective of a non-attorney divorce mediator, divorce mediation tries to achieve the same end result as a traditional divorce: a set of equitable agreements that both parties can live with. Where they sometimes differ is that mediation is also about helping people have a peaceful, equitable, cost-effective divorce that keeps their children’s best interests at the forefront of the entire process. Some might call this a win-win situation, but for those of us who have seen the sadness of divorce firsthand, the term “win-win” might be too strong to associate with divorce. Traditional divorce may also share some of these beneficial goals; however, in mediation, they are an inherent part of the process.

Benefits that non-attorney mediators bring to the table include never having taken one side in a divorce and not having an ethical obligation to one person. In speaking with numerous family law attorneys, I have found some who freely admit that they cannot be neutral, nor do they want to, as it’s not part of who they are. I think this self-understanding is very important for knowing your limitations and recognizing where your skills can be best utilized.

Non-attorney Divorce Mediators: Helping Clients Reach Lifelong Agreements

In the past—and to some extent, still today—family law attorneys have tried to be everything for their clients: attorney, financial advisor, accountant, therapist, mortgage expert, and so forth. Though it is noble, this jack-of-all-trades attorney has given all attorneys something of a bad name in the eyes of the general public. A non-attorney divorce mediator doesn’t have to worry about the stigma of having to do it all and be everything for their client. We are trained at resolving conflict and helping our clients reach lifelong agreements that make sense to them.

For non-attorney mediators, referring to other professionals during a divorce is seen as a good thing. However, for some attorneys, it is seen as a weakness. As mediators and/or attorneys, we have to consider what is more important: doing it all, but not being the best, or referring to professionals trained in topics such mortgages, taxes, finances, business valuation, etc. A mediator’s expertise lies in his or her ability to resolve conflicts, teach empathy, and work through problems in a peaceful manner. Mediation has the ability to provide an arena for couples to talk to each other while going through the divorce process, which is something that does not typically happen in a traditional divorce. An attorney is then brought in to focus on aspects of the case that require legal knowledge and individual attention.

Changing the Unfair Public Perception of Attorney/Mediators

A majority of divorces are simple to resolve, especially those resolved through mediation. However, divorce can get cloudy when phrases such as: “drawing your line in the sand”, “taking your spouse to the cleaners”, “fighting in court”, “bad parenting”, and “abandonment” are used. Mediators do their best to keep these words out of the divorce process, as these only fuel the emotional fire. Unfortunately, people often assume that all family law attorneys want to add fuel to the fire, which gives the overall majority of good family law attorneys a bad name and pushes people away from contacting them for divorce mediations. I have had numerous clients call me with one question: “Are you an attorney?” Once I say no, they are more than happy to talk to me. When asked why this was their first question, clients usually say that all attorneys want to do is fight and charge a lot of money for nothing. As a divorce mediator with a number of family law attorneys I consider friends and colleagues, I find this perception sad and unfair to those attorneys who are settlement-minded.

In my experience, money is the number one reason that people do not want to contact a divorce mediator who is also an attorney. Even if their hourly rate is equal to or less than mine, the client may still feel that the attorney will try to run up charges with unnecessary work. Many people feel going to an attorney/mediator is the same as hiring an attorney to represent them, but non-attorney mediators don’t have to deal with this preconceived problem. The only way to correct the negative reputation of attorney/mediators is to change people’s views about attorneys and the motives behind what they do.

Non-attorney Divorce Mediators and Family Law Attorneys 

In most mediated cases, applying the law and having a complex legal background aren’t typically necessary. However, this knowledge is still very important and there are many divorce cases where expert knowledge of the law is invaluable.

For non-attorney mediators, having colleagues who are family law attorneys is a great asset. Attorneys can provide non-attorney mediators with knowledge of changes in the laws that are important for mediation. Being able to refer to a family law attorney when in need of a legal opinion, legal advice, or answer to a legal question makes the job of a non-attorney mediator easier. Non-attorney divorce mediators are neutral and skilled at not taking sides. Looking at the divorce as one party against the other has never been part of our practice, but I enjoy working with family law attorneys and have found that my clients appreciate and benefit from the working relationships that we have.

Divorce Mediation will Soon be Mandatory

Divorce laws regarding mediation are in the process of changing. New Supreme Court rules are making mediation mandatory in all but limited circumstances when children are involved in divorce. The new law will apply to both pre-decree and post-decree cases. An increase in mediation will give non-attorney divorce mediators and family law attorneys more opportunities to work together, as well as provide attorney/mediators with more chances to prove wrong any negative public perceptions. Everyone in the alternative dispute resolution community applauds this decision.

Brian James is an experienced divorce and family mediator with offices throughout Chicagoland and Southeastern Wisconsin. He runs a mediation practice, C.E.L. and Associates, and their website is www.celandassociates.com.

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