I hesitated a little to write this blog because I support divorce mediation. I am a trained divorce mediator myself. The reasons for my hesitation were twofold. First, I try to write blogs that are positive in tone and content and not polemic. Second, I want to avoid any sense that what I write is self-serving. With those disclaimers in place, I write with respect to yet another encounter with a non-lawyer-drafted settlement document, of which these documents come my way periodically.
It’s important to note that private mediators do not need to be lawyers or have any specific legal training. Consequently, non-attorneys—often therapists or counselors—hold themselves out as divorce mediators. In Massachusetts, mediators complete what is referred to as “Rule 8” training to become trained mediators. When I took the training, I was told that Rule 8-trained mediators cannot represent that they are “certified” mediators—although as I write this blog, I am looking at the certificate of completion of Rule 8 training hanging on my office wall—but I digress.
Very recently I was called upon to review a document that purported to be the framework of a separation agreement drafted by a non-attorney mediator. In many respects it was word salad. Where it attempted to define legal concepts, it was often vague and confusing, if not just plain wrong. The general settlement concepts overall were salvageable but the document itself, on the whole, was not.
Divorce separation agreements are contracts with specific legal significance. There are important legal constructs within such agreements, such as “incorporation,” “merger,” and “survival.” And, you can’t just walk into court after the fact to “fix” things. Court involves a process and there are threshold requirements, absent an agreement of the parties, which may prevent one party from altering a separation agreement that has become a court judgment.
Three cliches come to mind when I read such documents. One is “penny wise and pound foolish.” Non-attorney mediators are often less expensive than attorney mediators; but “you get what you pay for.” Not only that, but when you are operating within the legal system, or for that matter any system, it is important to use “the right tool for the job.”
I don’t provide therapy. Although, after over 26 years in practice I have a good understanding of substance abuse, mental health, emotional, psychological, and psychiatric issues that present in family law cases. I actually have a decent working understanding of the phrase “dysfunctional dyad.” Yet, I do not dispense psychological diagnoses, nor do I provide formal therapy. I will make observations in my practice and recommend therapy or counseling, but I don’t practice as a therapist or counselor because I am not educated, trained, or licensed as a therapist or counselor.
Similarly, and frankly, I believe that it is a mistake for non-lawyers to draft legal documents. Full stop. Therapists, or any other so-called “lay person” is not usually qualified to draft contracts. But, you may ask: Are they qualified to mediate a settlement and then turn the basic settlement concepts over to a lawyer to draft the separation agreement? In limited, simple cases, perhaps. But where there is any complexity, or a question of child custody, to my mind the answer is no. In fact, I will go one step further.
Not only do I believe that divorce mediation, except in the simplest of cases, should be conducted by a lawyer, but I also believe that only family law litigation attorneys, or retired judges, should be doing it. Many of my colleagues may be at the juncture where they consider this a polemic, but I will press on.
In the context of family law litigation there are many subtleties and nuances that family law litigators have experience with, that those who have not been litigating these types of cases cannot know. For example, there are a certain number of judges in each political subdivision (counties) in which probate and family courts sit. Over time, family law litigators get to see and hear and discuss how certain judges handle certain issues; and, this is important in a system where there is a good amount of judicial discretion involved.
Now, some may argue, mediators are supposed to facilitate a negotiation and settlement, not provide legal advice and guidance. True. But, in mediations a mediator can, and most often do, ask for permission, not to give legal advice, but to make an experienced-based observation about how certain issues may be treated in their court system. For example, where the parties want to deviate or waive child support, a non-lawyer mediator or a non-family law attorney litigation mediator may just go ahead and write up the agreement deviating from the child support guidelines or waiving support altogether without any experienced-based observations that such deviations or waivers may meet with a jaundiced judicial eye. The result? The agreement can be rejected by the court. Not too long ago I helped a couple amend just such a rejected agreement. They went back to court with the amended agreement and I never heard from them again, which tells me that the amended agreement was approved.
So, when seeking a divorce mediator, use the right tool for the job and don’t be penny-wise and pound foolish.
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