The Diametric View of Attorney vs Mediator

The Diametric View of Attorney vs Mediator
April 3, 2019

{3:30 minutes to read} There are two diametrically opposed views as to the value of an attorney versus a mediator. In terms of settling a matrimonial matter, each believes the other is not necessary.

“There is no need for a mediator.”

Some matrimonial attorneys believe that two attorneys can negotiate for the parties and reach a settlement — why the need for a third party? After all, attorneys have been settling cases forever, and it works.
 
My response is that while it’s absolutely correct that attorneys can work together to reach a settlement, that doesn’t obviate the benefits of a mediation. Some reasons why a mediator adds value are:  
 
  • Not all attorneys are collaborative, and some take their charge of a zealous advocacy to the extreme. They may settle cases, but they may also refuse to acknowledge any merit to the other party’s position. And if the client is similarly unwilling to engage in meaningful understanding in an interest-based discussion, then the likelihood of reaching a substantially mutual agreement is diminished. 
  • Since most negotiations take place between attorneys, clients are left out, which compromises their right to make good decisions for themselves.
  • The costs are much higher and the process can be considerably longer.

“There is no need for an attorney.”

The underlying premise in this viewpoint is that the parties are fully capable of making up their own minds. An attorney, especially if the attorney is a litigator, will just come in and “muck up” the whole process by creating disharmony and making issues where none exist.
 
My experience is that in many circumstances, the mediation process benefits from the input of attorneys, but like all else in mediation, it is up to the individual client to decide if he/she wants an attorney.
 
Some of the benefits of having input from an attorney are: 
 
  • Some clients need help in advocating for themselves. 
  • In cases in which a client knowingly relinquishes a right, it would help to ensure that the agreement would be upheld if that party later tried to void it. 
  • A mediator cannot provide legal advice, so certain clients may benefit from an attorney consultation for advice, as well as help in terms of proposals that could be made.

If clients are truly committed to the terms of an agreement, no attorney should be able to dissuade them. If the client is susceptible to an attorney’s derailment of the agreement, then I would question the client’s commitment to the terms of the agreement in the first place.

In my view, two attorneys most definitely can settle a matrimonial dispute, but that is not anything like the process of mediation. I believe that the mediation process has benefits that cannot be achieved in an adversarial environment. I also believe that an attorney can have a positive role, even if the attorney is not someone who is committed to the practice of mediation, and that it is up to the client to decide with whom to consult. 

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