Divorce Mediation: Sweeping Conflicts Under the Rug, Time to Clean House
30 Pages Posted: 15 Jan 2016
Date Written: 2000
Abstract
Mediation, on its face, seemed like the natural panacea to the hostile environment frequently created by traditional divorce litigation. Mediation is, after all, a process whereby an impartial third party facilitates discussion between the parties which will hopefully result in a mutually acceptable resolution. In the definition alone, we find an absence of some of the major irritants usually present in a divorce: the advocate attorneys, the adversarial courtroom atmosphere, (although, to be fair, most divorces, like most other issues, never actually go to trial) and, of course, an agreement (often in name only) reached only after angry negotiations or dictated by the court, and frequently and loudly denounced by one and all. Instead, we have a supposedly impartial facilitator, one who has no direct interest or opinion in the case but who exists solely to help the parties find their own solution, one they theoretically will be happy, or at least able, to live with.
This article addresses the concerns raised by divorce mediation, most notably the conflicts inherent for both attorneys and non-attorneys involved in its practice, and by extension, the harm perpetrated on the participating parties. Specifically, it deals with the inability, under the ABA Model Rules of Professional Conduct, its earlier counterpart, the ABA Model Code of Professional Responsibility, and various state specific versions (hereinafter "Rules"), for an attorney to "take off his lawyering hat" to be an impartial mediator, as required under the ABA Standards of Practice for Lawyer-Mediators in Family Disputes and the other assorted rules of conduct for mediators" (hereinafter, collectively, "ABA Standards"). After the introduction in Part I, Part II discusses a short history and evolution of the mediation process, including its use in divorce situations by both lawyers and non-lawyers. Part III analyzes the process under both of these types of practitioners and discuss the ethical implications and problems for both lawyer-mediators and non-lawyer mediators in divorce. Part IV attempts to determine the validity of the ethical concerns addressed above, especially in light of the positive aspects of mediation, and will make recommendations for resolution of existing conflicts.
Keywords: Mediation, divorce litigation, impartial, third party, divorce, advocate attorneys, impartial facilitator, ABA Standards of Practice for Lawyer-Mediators in Family Disputes, ABA Model Rules of Professional Conduct, adversary, agreement, conflict, rules, ethics, ethical implications
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