Thursday, November 15, 2007

Myth or fact: Are attorneys the best divorce mediators?

Are attorneys the best mediators?While checking my daily Google alerts, I came across a press release from the PRWeb Newswire captioned, "Divorce Mediation: Myths & Facts, Internet Radio Talk Show, audience grows more than 221% in first 10 months and receives endorsement by the Association of Attorney-Mediators".

The press release contains the following quote:
For any couple considering divorce, Divorce Mediation: Myths & Facts clarifies the many advantages of mediation over litigation and explains the importance of using a professional attorney-mediator qualified to handle the most challenging issues of divorce.
(Emphasis mine.)

Now wait just a minute, folks. Since when does admission to the bar automatically make someone a better mediator? I had thought we had long ago rejected the notion that a law degree constitutes a prerequisite to mediation practice. The mediator's role is to aid the parties to identify interests, communicate and share information, make informed decisions, and ultimately reach resolution, and not to provide legal advice. As the American Bar Association Section of Dispute Resolution observed in its February 2002 Resolution on Mediation and the Unauthorized Practice of Law (PDF)

Mediation is a process in which an impartial individual assists the parties in reaching a voluntary settlement. Such assistance does not constitute the practice of law. The parties to the mediation are not represented by the mediator.

Implying that the services of so-called "attorney-mediators" are somehow preferable to those of mediators from other professions of origin does an injustice to the many excellent family mediators currently in practice who are not attorneys. This does no favors to the public as well which needs more facts and far fewer myths.

11/16 update: For a powerfully worded essay on why the mediation profession needs to rethink these labels, please read Tammy Lenski's "Let's Change Our Limiting Self-Labeling Practices" posted at Mediate.com.