WHAT ARE THE DIFFERENCES BETWEEN MEDIATORS AND ATTORNEYS?
A mediator is a neutral third party who assists parties in navigating their legal differences by creating a forum for open dialogue. Mediators can also draft legal documents detailing agreements reached by the parties but do not represent either party. Mediators are utilized out of court for the purposes of negotiation and for facilitating a dialogue that will hopefully be productive. While they may be attorneys by trade, mediators cannot later be retained by a party to represent them in court proceedings if the mediator previously attempted to mediate the dispute at hand. A mediator will not go to court and argue for or against any party. Conversely, an attorney represents one party, and will zealously advocate for the party they are representing. While an attorney’s job is to advocate on behalf of their clients, an attorney can take a meditative or cooperative negotiating approach to working with the opposing party.
WHO NEEDS AN ATTORNEY AND WHO NEEDS A MEDIATOR?
Anyone can benefit from either an attorney or a mediator. The question of who will benefit the most from which one is contingent upon what the dispute is over, what level of expertise and advice you are seeking, the parties’ ability to communicate with one another, and if BOTH parties are in agreement. Mediation services can only be utilized if each party decides that mediation is an avenue they want to explore.
A common misconception is that once someone hires counsel, mediation is pretty much out of the question, which is inaccurate. Parties to a domestic relations proceeding can always opt in to mediation to see if they can resolve their differences. In fact, many counties require parties to attend mediation in parentage cases or if child-related matters are at issue in a divorce proceeding.
Something to be mindful of is a mediator’s inability to represent either party if mediation is unsuccessful. For example, if two parties enter mediation with the intent to settle out of court, but later decide mediation is unproductive, that mediator is prohibited from representing either party in court proceedings, assuming he or she is an attorney.
The purpose of mediation is to come to an agreement without utilizing litigation tactics. However, while parties enter mediation with the intention of settling out of court, it is not uncommon for negotiations to fall apart or for the parties to realize that they cannot reconcile their differences. At that point, the parties would transition into litigation and could utilize attorneys and the court for guidance and direction.