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Lawyers and Divorce Mediation - Designing the Role of 'Outside Counsel'

NCJ Number
Mediation Quarterly Issue: 12 Dated: (1986) Pages: 17-36
M C Rutherford
Date Published
20 pages
Within the context of American Bar Association (ABA) standards, this article examines the various roles of outside counsel in a mediated divorce in which the mediator is also an attorney.
Following a discussion of the benefits, goals, risks, and participant expectations of divorce mediation, the purpose of the ABA standards is reviewed as it relates to protecting the various interests represented in the mediation process. Under the standards, the outside counsel can fulfill roles ranging from zealous advocate of the client's interests to documenter of the settlement agreement. The primary functions of outside counsel are to ensure that interests are protected, to see that all pertinent information is brought into mediation, and to prevent an omnipotent mediator. The ABA standards, however, are based on the assumption that an individual cannot be neutral in a family dispute and seem to require that the practice of divorce mediation conform to the practices and policies prescribed by litigation. Since the standards appear to place the attorney in an adversarial role, they need to be amended. Riskin's (1984) proposed amendment for mediation suggests a two-part test: the attorney's duty should be to ensure that the agreement meets the participant's, society's, and unrepresented third parties' notions of fairness; and the mediation process should identify and maximize joint gains. Thus, the outside counsel functions as a check and balance system and as an advisor. 34 references.