Tuesday, December 05, 2006

No Switching of Mediator and Attorney Roles

Because of ethical rules governing mediators as well as attorneys, I cannot be hired as the mediator in a case and then switch roles to act as one party's attorney. Likewise, I cannot be hired as one party's attorney first and then switch roles to act as mediator for the parties. It's one role or the other - never both.

As a mediator, I am neutral and not working in one party's favor over the other. I am hired by both parties to help find fair, reasonable and workable solutions for everyone. While I discuss California law and local court practices regarding all issues, I do not give advice to either party as to what each party should or should not agree to or what is in one party's best interest over the party's best interest. Parties make "fairness" decisions between them based on legal guidelines as well as what works best for them. The one-size-fits-all legal model simply does not apply where it makes no sense to apply!

As an attorney, I am not hired to be neutral. I am hired to provide information regarding the law and court practices, to advocate in my client's best interest and to provide legal advice and recommendations.

When a potential client calls me for a family or divorce mediation, I discuss a bit of the legal process as well as the mediation process first. I explain that if I am consulted as a potential attorney for one of the parties then I cannot be the parties' mediator and vice versa. I also explain that if I am hired as an attorney for one party, that does not mean we cannot work together with the other party and/or their attorney informally to create agreements. It also does not mean that we cannot agree to hire a different mediator if we cannot reach solutions. Then we discuss which process makes the most sense for the potential client and we set up the next step - a one-on consultation for the attorney representation or a meeting with both parties to begin the mediation process (or discuss beginning the process, as the case may be).

It is important that individuals venturing into the divorce or family law process understand what their options are. To that end, I try to provide as much information as I can about their options before the line has been crossed between a neutral faciliator for both parties and an attorney-client relationship with just one party. It must be one or the other - never both.

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