The Attorney Role in Mediations/Martin Rosenfeld, JD

Posted on February 16, 2020

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Attorney Tye Bourdony penned an article for the February 2020 issue of mediate.com. (“Do I Need to Have a Divorce/Family Attorney Before Beginning My Divorce”). In the article, Mr. Bourdony describes two types of divorcing couples; those who are “at war” and those who can work towards an amicable divorce agreement. He then suggests that individuals facing a divorce select an attorney to help them decide “the best solutions moving forward”.

My reaction to the above article is that seeking legal advice is never a bad idea for persons who are facing divorce. However, a suggestion that an attorney will help a person choose what option to choose, i.e. litigation or mediation, is a likely exercise in futility. Unless an attorney is well-versed in mediation, it is unlikely that they will recommend mediation over the litigation mode. It would be a suggestion against their self-interest. I will illustrate this with a vignette from past experience.

I mediate in the State of New Jersey. I received an email from an attorney/mediator in another county who was soliciting mediators for a local Court program. A Family Court in that county had a presiding judge who was inviting mediators to come to his Court and there address the assembled parties about the virtues of mediation. I signed up for the program and faced an audience of perhaps 60 people. I spoke for my allotted time about why mediation makes sense. Upon conclusion, the judge announced that “Mr. Rosenfeld will be here for a while to answer your questions about mediation.” No one came. What happened instead? A number of parties leaned over to their attorney and presumable asked if they should pursue mediation. In such a scenario, the attorneys, ready to litigate their cases, were not likely to suggest that their clients should “cross over to the other side” and mediate. It is unreasonable to expect otherwise. There is a definite role for attorneys whose parties have chosen to mediate. I am not sure if the role of the attorney regarding the choice to mediate is of much significance. Mediation makes sense. Even pro se parties can figure that one out. Mediate don’t litigate.