I recently traveled out to Spokane, Washington and met with a group of concerned mediators there about an ethics opinion that’s been issued by their State Bar Association (WSBA Advisory Opinion 2223).
The opinion, while only an “advisory” statement from the Rules of Professional Conduct Committee, and not the official position of the Washington Bar Association, is nevertheless disturbing; it purports to prohibit a lawyer/mediator from drafting the final settlement documents for a couple that he or she has just mediated to resolution. This goes beyond the expected “Unauthorized Practice of Law” rules that would prohibit a therapist/mediator from drafting the final, legal documents — this Opinion would prohibit a divorce mediator who’s also an attorney in good standing in the state from helping the couple by drafting their court documents.
It doesn’t stop there. The Opinion also prohibits any other lawyer — not the mediator, but any independent “scribe” — from drafting documents for a mediated couple. Apparently, this means each spouse has to separately lawyer up.
The “logic” of the Opinion ? When a lawyer/mediator has finished the mediation and starts to draft the agreement, it’s determined that they are no longer mediating, but “practicing law” – which may well be the case. BUT because the husband and wife are divorcing, the Committee concluded that the spouses have a non-waiveable conflict of interest, and can NOT be “represented” by a single attorney.
The “illogic” of the Opinion ? The Committee members (none of whom, I suspect, practice mediation) seem unable to entertain the new notion of a “neutral” attorney. The opinion fails to grasp the reality that, while people going through divorce do have conflicting interests along the way, at that moment when the mediator has helped them get to “Yes!” and all the details of their settlement fall into place, they no longer have opposing interests; they are now unified in the common concern of getting their deal down on paper, and approved by the court. And as a practical matter, the mediator (who has been involved with the negotiation of all the details of the agreement) is in the best position to capture on paper precisely what the couple needs to do. Must the attorney/mediator draft up a “Memorandum of Understanding” to have two other attorneys translate the deal from English into Legal ?
The “real” reason for the Opinion ? It seems to be an effort by the Organized Bar to stem the erosion of fees lost to mediators from traditional, gladiatorial matrimonial practitioners. Why else would it require that not one but two attorneys (in addition to the attorney/mediator) be involved in the drafting and reviewing of largely standardized documentation ?
This Opinion marks the latest skirmish in the Thirty-Year War over turf that’s been waged by attorneys against divorce mediation. Given this obstinacy, perhaps it’s time for mediators (as conflict-averse and constructive in problem-solving as we are by nature) to embrace a new model of what I’d call “attack pacifism” — and start to call out the matrimonial bar for what they’re continuing to try to do to perpetuate the monopoly on access to divorce.