Is Mediation a Substitution for Attorney Representation?

by | Jul 25, 2017

Short answer: No.

More and more, I see mediation framed as a “one-stop” solution for couples who want to resolve their family matters. However, mediation is not the same as being represented by an attorney. These are two different – but complimentary – roles that when both used lay the foundation for a more lasting, durable settlement.

First – What is mediation? Maryland Rule 17-102(g) (which governs court-ordered mediation, but is also a useful reference point for private mediation) defines “mediation” as “a process in which the parties work with one or more impartial mediators who, without providing legal advice, assist the parties in reaching their own voluntary agreement for the resolution of all or part of a dispute.”

Second – What is a mediator? According to Maryland Rule 17-103: Role of Mediator, “A mediator may help identify issues and options, assist the parties and their attorneys in exploring the needs underlying their respective positions, and, upon request, record points of agreement expressed and adopted by the parties. While acting as a mediator, the mediator does not engage in any other ADR process and does not recommend the terms of an agreement.”

Each mediator has her own unique mediation style. Some are more evaluative, giving opinions (if asked) about the merits of a party’s position. Other mediators are completely neutral and do not offer opinions or even suggest potential solutions. All mediators, though, do not provide legal advice. That role is reserved for attorneys.

Third – What is the role of an attorney in mediation? By definition (Business Occupations & Professions Article, ยง10-101), the practice of law is reserved for attorneys/lawyers and involves “giving legal advice”, “preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court”, and “giving advice about a case that is or may be filed in a court”.

An attorney can only represent one party in in a family matter – not both – including in any mediation. So, each party should have his/her own attorney.

Fourth – Why involve an attorney in mediation? At the least, the attorney’s role is to provide her client legal advice – whether during mediation sessions attended by the attorney or before and after mediation sessions that the parties attend without attorneys. In short, the attorney’s job is to protect her client’s best interests via the legal advice provided, so a client can make his or her own educated, fully-informed decisions.

The attorney’s role also includes drafting any settlement agreement, especially if the parties want a durable, lasting contract. Likewise, an experienced attorney can identify practical and legal pitfalls of mediated terms, again for more durable, lasting settlement terms.

In conclusion, just as each mediator is unique, so is each attorney. Settlement-minded attorneys seek to enhance and compliment the client’s mediation experience; not undermine or diminish it.

These attorneys and mediators share the same goal: settlement.

Settlement achieved by different, but complimentary, means. For the attorney, it is by providing legal advice, education, and contract drafting and review. For the mediator, it is by facilitating a settlement discussion and navigating the couple to mutually agreeable settlement terms. Two sides of the same settlement coin.

For more information, please read my other post on Whether and When to Involve an Attorney in Mediation.