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Mediators and Legal Advice:

Professional Mediator or Attorney-Mediator?

 

Much has been written, and continues to be written about mediators. There are professional mediators, who are not lawyers. They tend to also be called non-legal mediators. There are lawyers who mediate, and these are often called attorney-mediators. A common assumption is that a mediator should be an attorney because s/he knows the law. And as a trained lawyer possesses a set of specific skills to defend his client, s/he is expected to give advice on legal issues.

 

Some lawyers are good mediators; however, as outlined by the American Bar Association, ‘mediation is not the practice of law’. And on the assumptions of expertise, consider the following:

 

• An expert divorce lawyer is not necessarily an expert in environmental law.
• A lawyer, though an expert in his field, is not necessarily an expert in mediation.
• An expert mediator is not necessarily an expert in law.  

 

Mediator

 

A mediator possesses a set of specific skills to reconcile two parties in dispute, and these skills differ from those required by the attorney. The professional mediator is trained in the field of mediation and/or conflict resolution, and uses those skills to resolve conflict. This includes expertise in assisting others in bridging the communication gap, brainstorming for additional options, negotiating the best possible outcome, and coming to solutions that will work for both parties. To be an effective mediator, this also includes area-specific skills for building interpersonal relationships, understanding situational dynamics, and diffusing emotionally charged interactions.

 

By definition, the mediator does not take sides, and while s/he guides the process, s/he cannot tell the parties what to do; giving legal advice is not the mediator’s job, whether s/he happens to be an attorney or a professional mediator.

 

If involved in mediation with a professional mediator, and legal advice is needed, an independent attorney will be consulted. In some cases, an attorney can also attend the mediation sessions with her/his party if so desired, provided that both sides bring their attorneys to mediation.

 

Attorney-Mediator

 

And what if an attorney-mediator is handling the mediation? Can s/he advise the parties? In this instance, the lawyer is acting as mediator, and assisting two persons who are not his clients. S/he is bound by the standards of the professional mediator, in that the person mediating the case cannot give legal advice to either party. Each party needs to consult their own independent attorney, outside of the mediation.

 

All things considered, the effectiveness of a mediator is not dependent on a law degree, rather on adequate mediation/

conflict resolution training and personal skill. For those who voluntarily enter into mediation, the decision whether to hire a professional mediator or an attorney-mediator is one of confidence in the mediator and personal choice.

 

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For more information:

 

American Bar Association: ABA Section of Dispute Resolution: Resolution on Mediation and the Unauthorized Practice of Law

http://www.abanet.org/dispute/resolution2002.pdf

 

Chris Currie: Should a Mediator Also Be An Attorney?

http://www.mediate.com/articles/currie.cfm

 

Maryland Legal Assistance Network: Should I Look for an Attorney or a Mediator?

http://www.peoples-law.org/core/mediation/should_i_look_for_an_attorney_or.htm