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The practice in our office when we are providing mediation services is to ask both parties to have their own individual attorneys they can access to answer their legal questions throughout the mediation process, and to prepare the legal documents once a settlement has been reached.

Some clients have asked why we cannot do it all; i.e. help them resolve the dispute, answer their legal questions, and prepare the legal documents.

The problem is that we can’t wear both hats (mediator and attorney) at the same time, and if we were wearing the attorney hat, we can’t be the attorney for both parties.

In terms of being attorney for both sides, Washington State has an ethics code for attorneys that we are bound by. To act as a lawyer for both parties in a divorce represents a conflict of interest under this code. Violating this prohibition could cost us our licenses.

The reason we cannot act as both mediator and attorney at the same time is that a mediator has to be neutral.

As discussed above, we can’t be the attorney for both both, so if we were also acting as an attorney it would have to be as attorney for one side, which would conflict with the duty to be neutral. Also, legal advice generally involves favoring one side’s position over the other, which is again in conflict with the duty to be neutral.

Things do get a bit murky when defining exactly what constitutes acting as a mediator for the parties, versus when that work crosses the line into acting as a lawyer for the parties.

Certainly a mediator can prepare a document detailing what the agreement of the parties is. However, that leaves open a controversy as to whether the mediator drafting language for the agreement that has not been specifically discussed and agreed to might verge into the attorney role (the choices necessarily made in drafting such language may favor one party over the other).

There is also some controversy at this time, that is currently being debated by the Bar, as to how much the mediator can do beyond drafting the agreement.

A proposed Bar opinion is suggesting that filling in the blanks and checking the boxes in standard forms might not amount to acting as an attorney for the parties, and also that it may be possible for the mediator to act (with mutual written consent) as the attorney for one party after the mediation has concluded. However, that change in the Bar’s ethical policies has not yet been approved.

We believe that the best approach is to not teeter on the edge of ethical dilemmas. For this reason, we will continue to expect mediation clients to take their legal questions and legal drafting work to outside counsel and let us focus on mediating.

Ultimately it is technically possible to have a divorce mediation without attorneys, but this means that the mediator cannot take the place of lawyers. Both parties can choose to research legal questions for themselves and draft their own legal documents, but we definitely do not recommend it.