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Divorce Mediation: Why mediators should be lawyers (usually)

As a divorce lawyer and a mediator, I’d like to share my thoughts on why your divorce mediator should be a lawyer. There are many mediators who are not lawyers, and frankly, many of them use sales tactics akin to used-car salesman, and have some people wondering why they are not prosecuted for practicing law without a license.

If you are thinking about divorce mediation in Illinois, you should read this article about divorce mediators. It could save you a lot of trouble.

Some mediators play lawyer

I actually am a lawyer. Mediators who simply play lawyer should be prosecuted for practicing law without a license.

Let me give you an example. Suppose a non-attorney mediator makes a glossy website and goes to great lengths touting how his service renders lawyers irrelevant. One particular mediator I have in mind claims that his business will produce everything you need to handle your divorce – including actual legal documents. In fact, this mediator will even file documents for you.

In other words, this mediator is selling a service that he positions as as replacement for a lawyer. That’s funny. And dangerous.

Non-attorney mediators don’t know the law

Do you think a former social-worker-turned-mediator has the legal knowledge of a lawyer? Surely not.

Mediators are supposed to be neutrals who help to parties in a dispute reach an agreement. However, non-attorney mediators can lead people astray be guiding them to an agreement that is legally unenforceable and has excessive unintended consequences. Why? Because they are not lawyers. They don’t know the law.

Let me give you an example. I was reviewed an agreement prepared by one of the most popular non-attorney mediators in Chicago. That agreement was a great example of how non-attorney mediators can be dangerously incompetent.

We’ll call this foolish mediator Jimmy. Let me tell you want type of guy Jimmy is. He puts a massive amount effort into marketing, using misleading tactics to make his practice seem much bigger than it is. He once introduced himself to a networking group by saying, “Hi, I’m Jimmy, I divorce people.” On a Chicago-area forum for mediators, he is often involved in stupid discussions with a bunch of mediators who know shockingly little about the law.

So now back to the example. A client came in and said he had reached an agreement through mediation. I asked to see the agreement, and almost immediately, a major problem jumped out. The agreement had a clause regarding a piece of real estate owned by the client and his wife, and another third party.  That real estate clause required the third party to take certain actions.

So here’s the problem: that’s impossible. A marital settlement agreement can only bind the two spouses.

In other words: The mediator is a moron who is in way too deep. Because of the mediator’s lack of legal knowledge, he helped them reach an agreement which is impossible.

And that’s why your mediator should be a lawyer.

Mediation is not counseling

Mediating a divorce is not counseling. It is helping people reach a legally-enforceable agreement.

So why are mediators with backgrounds in social work helping people reach legal agreements with complicated legal and financial implications? It doesn’t make much sense.

While there are some mediators with therapy and social work backgrounds who can do a good job, they primarily focus on child-related matters.