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NCJRS Abstract

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NCJ Number: 92170 Find in a Library
Title: Professional Responsibility Problem of Divorce Mediation (From Alternative Means of Family Dispute Resolution, P 239-319, 1982, Howard Davidson et al, ed. - See NCJ-92365)
Author(s): L J Silberman
Date Published: 1982
Page Count: 80
Sponsoring Agency: American Bar Assoc
Washington, DC 20036
Sale Source: American Bar Assoc
National Legal Resource Ctr for Child Advocacy and Protection
1800 M Street, NW
Washington, DC 20036
United States of America
Language: English
Country: United States of America
Annotation: This article discusses four types of mediation program models which have raised distinct legal professional ethics issues: the solo lawyer mediator, the solo therapist, the lawyer-therapist team, and the Coogler variation of the interdisciplinary team.
Abstract: The discussion defines the crucial objections to each of these approaches and cites court and bar association rulings issued in various parts of the country. Divorce mediation by a single lawyer faces the prohibition of Canon 5, preventing representation of conflicting interests and confuses the concepts of mediation and representation. The sole nonlawyer mediator, on the other hand, runs the risk of 'engaging in the unauthorized practice of law,' thus subjecting himself to misdemeanor or contempt charges. A lawyer-therapist team practice conflicts with Canon 3, which states that a lawyer cannot practice law in association with a nonlawyer. The Coogler 'structured mediation model' also uses the talents of specialized family mediators as well as matrimonial attorneys, but delineates the task of each professional independently. According to this model, an impartial advisory attorney is brought in to finalize and draft agreements worked out informally under the guidance of the family counselor. Objections to this scheme may also relate to the unauthorized practice of law by the family mediator or to the prohibition against aiding nonlawyers in unauthorized legal practice. The conflict of interest issue has also been raised against the impartial advisory attorney. Although ethical conflicts should be addressed by the law, it is important that these restrictive professional responsibility rulings do not prevent experimentation with sorely needed divorce mediation programs. A total of 134 footnotes are given.
Index Term(s): Attorneys; Conflict of interest; Conflict resolution; Counselors; Family counseling; Mediation; Professional misconduct
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