Divorce Mediation: Beware of the Wolf in Sheep’s Clothing

{3:30 minutes to read}  There have been numerous times when a potential client has come to see me for a consultation and I find out that they had already seen another mediator, but got the feeling that something was not quite right. I always acknowledge the courage it takes to not give up on mediation when that happens. It’s helpful for me to know what was “off” about that meeting. Usually they will volunteer that information.

The typical story I hear is that they thought it would be a good idea to see a mediator who was also an attorney. I can fully understand that because from the client’s point of view, they think they are getting the best of both worlds. But often that is not the case.

Now I want to be very careful here. I am NOT disparaging in any way the mediators who happen to be attorneys. In fact, I have co-trained many attorneys at the Center for Mediation and Training who wish to transition their litigation practices into mediation practices. A worthy goal.

What I am questioning are those attorneys who claim they “also mediate” — when in fact they have had little or no training at all in mediation. Since its inception in the ‘70s, mediation has gained enormous traction especially in the last decade or so. It’s understandable that divorce professionals want to get on the bandwagon and hang their shingle claiming “Mediation Services ‘R’ Us.” But I say: “Caveat emptor” — let the buyer beware. And in fact, thankfully, many are.

Mediation is a profession with very specific and complicated skill sets. It takes not only extensive training to become a competent mediator, but years of experience and continuing education.

• It’s not enough to take one 40-hour basic training.
• It’s not enough to have taken a few ADR (alternative dispute resolution) classes in law school.
• It’s not enough to think that 20 years of lawyering prepares one for the complex world of divorce mediation, where you are working with two people, not just one AND allowing them to make the decisions.

During the 40-hour basic training for burgeoning divorce mediators, we do many role plays. What’s fascinating, but not surprising, is how difficult the attorneys in the class find it to be impartial and not advocate nor advise the clients. It’s a great struggle for them and understandably so. Three years of law school and umpteen years of private practice has drummed into them that clients need advocacy, direction and advice. It’s hard to switch that litigious mindset. It takes practice, persistence, and perseverance. No easy task — and one that not many can or are willing to master.

For potential clients: Be careful of the bait and switch/wolf in sheep’s clothing.