Biernbaum & Meyer Legal Blog

Tuesday, November 1, 2016

How to Choose a Divorce Mediator

By: Paul E. Meyer, Esq 

First, you need to decide whether you want a lay person or an attorney as a mediator.  Lay mediators come from all backgrounds and cannot actually draft the legal document, a Separation Agreement, which is the goal of all divorce mediations.  Instead, they prepare what is commonly called a Memorandum of Understanding.  This document must then be incorporated by an attorney into a Separation Agreement, which is the legal document.  Some mediators are using an “independent” attorney to draft the Agreement, and calling those attorneys “scribes.”  It is my understanding that frequently both of the parties will meet with the so-called scribe to explain their understanding of the Memorandum of Understanding so that the scribe is in a better position to draft the Separation Agreement.  Once the scribe has drafted the Agreement, the parties will sign it without the benefit of independent legal counsel.

This is not how all lay mediators are handling divorce mediations, but it is a practice of some where the prime focus is saving the participants money instead of reaching a fair agreement.  There is no question that this will save money; however, the parties are signing a binding Agreement without the benefit of independent legal representation.  Query: Would you have your appendectomy performed by a nurse practitioner or would you prefer a general surgeon.

This is not an advertisement for attorneys, it’s a wakeup call for everyone who tries to avoid attorneys when they are an absolutely an essential part of the equation.  As an attorney-mediator, even though I can draft the Separation Agreement, I still insist that each mediation participant retain their own attorney to at a minimum review the Separation Agreement with them, and I will not proceed with having the Agreement signed by both participants until it has been approved by each of their attorneys.  If you want a durable Agreement that you understand, which can only be accomplished after receiving independent legal advice, then this is the mediation process for you, whether the mediator is a lay person or an attorney.

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