One of the most frequent calls my office receives is from someone who says something like, “My wife and I want to get divorced, and we just want to use one attorney.” My legal assistant will respond by explaining to the caller that one lawyer cannot ethically represent both parties to a divorce (even if the parties already have everything worked out between them, or intend to work together amicably to negotiate a “friendly” divorce.)
Why can’t one attorney represent both parties? An attorney is ethically prohibited from representing two people with conflicting interests. Attorneys have an ethical duty to protect their own client’s best interests—not the competing interests of the other party.
Unlike a divorce mediator, who is a neutral facilitator of the conversations between the parties as they work to resolve their differences, a lawyer’s role is to be an advocate for his/her client. As an advocate, the lawyer cannot get caught in the middle of two parties’ opposing positions.
Most of the time, the parties’ interest in retaining one lawyer to represent both parties is rooted in the desire to save money. Who wants to pay two lawyers to argue with each other when the parties just want to agree to disagree and end things amicably?
So what’s the solution? One way is for the parties to work with one mediator, who is neutral and not on anybody’s side. The mediator helps the parties identify the issues that need to be resolved, and facilitates productive discussions about the issues with the goal of reaching an agreement acceptable to both parties. Once the agreement is reached, then each party can have the agreement reviewed by his/her own attorney (advocate). One party’s attorney can write it up in the form required by the Court, and the other party’s attorney can review it and provide input for any changes that need to be made.
If saving money is the goal, consider the high cost (financial and emotional) of conflict. Mediators are experienced in resolving conflict, not escalating it.
Mediation may be right for you and your spouse if:
- You prefer to work out your divorce agreement rather than going to court and asking a judge to make decisions for you.
- You want to reach an agreement, but don’t know where to start.
- You desire to reduce the costs associated with negotiating an agreement by using an experienced mediator, rather than paying two attorneys to assist with your negotiations.