NCJ Number
92172
Date Published
1982
Length
21 pages
Annotation
Acknowledging the increasing popularity of mediation in lieu of litigation of divorce settlement cases, this article nevertheless points out some of the ethical dilemmas of lawyer involvement in such programs.
Abstract
The author argues that meditation cannot be claimed to save anyone money, since most services are fairly expensive and represent an addition to the already high financial costs of divorce. Furthermore, the confrontation between the contesting partners may not necessarily be as beneficial for all couples as mediation advocates claim. Professional dilemmas for lawyers becoming involved in mediation include the illegality of the same counsel representing the opposing parties in the case, the potential of becoming drawn into the emotional conflict between the spouses, and the motivation to pressure for accepting the negotiated agreement because it represents program success. It is proposed that mediation be regulated to provide safety for both lawyers and clients. A preliminary written contract between parties and mediation providers should be required, followed by a full oral explanation by the attorney of all the understandings covered in the contract. Then, signing parties should be allowed 3 days before the contract becomes binding upon a second signature. Among the issues to be made thoroughly clear is that mediation service does not constitute legal representation, that the parties' legal interests are presumed to conflict, that the lawyer will not represent anyone before the court if the final mediated agreement fails, and that the lawyer may cut off mediation if irreconcilable conflict of interest becomes evident. The lawyer should also see each part separately as well as together and give his opinion on what the court would do if the case were contested. Ten footnotes are provided.