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Attorneys vs. Mediators: The Good the Bad and The Truth

By Jennifer Segura

Attorneys and mediators are in this weird symbiotic relationship, but yet it is not entirely clear if they like each other, even though they often depend on each other.

The real question that seems to put some attorneys and mediators at odds with each other is whether mediators should also be attorneys and whether attorneys make good mediators. Who knows if there will ever be a consensus to those two questions, however, here are some ideas behind how the questions surfaced in the first place.

Should a mediator also be an attorney?

A mediator has a very different skill set than an attorney has. There are different types of mediators, and while some types of mediation really can benefit from legal education, it is not necessary for all mediators. Further, having a legal education is different from ever being a litigator. Some attorneys do not believe you can mediate without having a career as a litigator first. While there can be something said for “being in the trenches” and seeing how bad things can get… I think there is a flip side to that. If one litigates for 10-15-20 years before becoming a mediator… where will their strengths lie? Common sense tells us they will be strong litigators, and they will be celebrated at zealously representing THEIR client. But is that a strength you want in your mediator?

As a law school graduate who never litigated (aside from a couple of short term jobs while in law school), I have spent my entire career building my skills as a mediator…a neutral. I have learned to ignore thoughts of “right” or “wrong” and trust in the ability of my clients to know what is best for THEM. I am not here to judge my clients and the choices they made that have deconstructed their marriage, and it is none of my business. My business is to help strengthen THEM so they can find a way to climb out of the darkness and toward the lights that still shine in their lives. Most often, that light is their children. See, when people find themselves in a litigated divorce, it is so easy to continue to let the anger and the resentments build rather than to work past them and begin a new foundation of trust and support, so once the divorce is over, there can be a peaceful path to continue pushing forward in their lives. A path that will support the needs of their children as they struggle to get used to the new normal. And a path that will help my clients create a new healthy life for themselves. Litigated divorces are heavy and dark and very little time (if any) is focused on improving the two adversaries to get along. Allowing them to continue to hate one another keeps the confrontations high and the money coming in… it is a sad but true reality.

Don’t get me wrong; there are some instances where it is impossible to get through a divorce without litigation, as mediation is voluntary and requires people to basically, do the right thing, by the other person. There are times where that seemed to be working … until it just stopped… and at that point, because we cannot control nor force anyone to do anything, attorneys are necessary. Further, a mediated case works out far better when the clients have a consulting attorney who is helping them to understand the law, as it applies in their case, as well as help out with reality checks regarding the best and worst case scenario’s should this particular case go before a judge.

And now the other question…

Do attorneys make good mediators?

This is a very subjective question. Some attorneys make fantastic mediators… others treat mediation as a settlement conference, and there is very little (if any) mediation that takes place. True mediation is nothing like a settlement conference. True mediation puts the power of decision making into the parties’ hands and does so without any pressure to do anything other than what they feel is best for their family. It is giving the clients the self-determination and responsibility to know what is best for them and proceed accordingly.

It can be tough for an attorney, who litigates more often than mediates, to let go of their true nature, which is to represent one party’s interest over the other. Not to allow rules of court to cloud their ability to let go of their own opinion of how the clients should settle, and instead, allow them to decide what feels fair to them… regardless of what the law or the court says they SHOULD believe.

Ultimately, I think both attorneys and mediators work best when they help each other and support each other to do whatever it is their clients need. More often than not, I hear my attorney friends comment on how they would never want to deal with all of the emotional drama that we mediators have to deal with. I, however, could not imagine how tough it would be to pretend emotions do not play a part in the process at all. We are not therapists, and mediation is not therapy, nor is it an alternative to therapy (therapy should be utilized additionally if either party feels it is necessary), but one cannot deny that marriage includes emotions, so of course, the dissolution of a marriage will also include emotions. Even when parties get along great, they are still mourning the loss of their family, and that loss should be acknowledged and respected. That is one of my favorite parts of my job… helping my clients to see each other one last time in the same light they did when they first met and fell in love. To remember this is a person who was once your most important person. This enables everyone to move forward respectfully and not try to screw the other person… which should always be the goal.

Are you interested in mediation? Contact San Diego Family Mediation Center at (858) 736-2411 today!