Choosing a Mediator or an Attorney

My Mediator is Not an Attorney? Is That a Problem/Martin Rosenfeld

I once participated in a study which involved mediators who were attorneys and mediators who were non-attorneys. The study concluded that the mediator-attorneys tended to view the issue at hand in legal terms while the mediators who were non-attorneys tended to view the issues more in interpersonal terms. Attorneys have different training than do other professionals and hence it is not surprising that their approach to mediation will reflect their specific training and expertise. Is it an advantage to have a mediator who is an attorney? I believe the answer to this question is the following: “that depends!”

With any professional, the most important concern is whether they practice their skill with proficiency and exactitude. A non-attorney mediator who is proficient in mediation theory will outperform the attorney-mediator, and vice-versa. The first question to ask therefore must address mediator competence and professionalism. This can be ascertained by reputation, referrals, examination of their writings, etc.

However, in truth, each mediator “category” brings important strengths to the mediation process. An attorney-mediator will have broad experience in Court procedures and practice. She will know what agreements fall outside the pale of normative behavior. She will have the insights garnered from seeing hearings, motions, trails, etc conducted before experienced judges. She will be aware of legal trends and developments. All these will be of great benefit to the client.

On the other hand, the non-attorney mediator may well have greater insight into the interpersonal dimension, into human behavior and needs, and into non-legal aspects of divorce. Divorce Law is more that legal directives. It involved feelings, emotions, needs, and aspirations. To ignore this aspect of the divorce process is to miss arguably the most important aspect of the divorce process.

There are advantages and disadvantages to different types of mediators. Ultimately, the choice of the mediator is a very personal one based on a comfort level and confidence. Do you feel at ease trusting your mediator with your confidences and vulnerabilities? If you do, all else will likely fall into place. Mediation is a challenging process. Choose the mediator who enables you to maintain the fortitude and conviction to see the process through.

To overlook the legal component of divorce law is to miss the “big picture”. To overlook the interpersonal component is to fail to pay homage to the need of the human to feel safe and directed at a time of potential trauma and hurt. Make your choice after soul-searching and careful deliberation.

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