Can a mediator draft all the documents in a divorce?

Asked 10 months ago - Nashville, TN

I had a consultation with lawyer who is a Rule 31 Mediator with my spouse present. Neither party has filed a complaint yet. Divorce includes minor children and multiple real properties. The mediator has offered to draft the complaint, MDA, PP, final decree, deeds and all other documents for the divorce. The Final Decree will include who the mediator is and what was agreed in mediation and a separate mediation agreement will be filed. Is this ethical and acceptable?

Attorney answers (4)

  1. Wilton A. Marble Jr.

    Contributor Level 11

    Answered . Well in TN a lawyer can represent BOTH side if they BOTH agree however if a disagreement occurs later in the divorce action the lawyer, generally speaking must withdraw and both parties have to go hire other lawyers. for this reason it is a dangerous practice as oftentimes the parties at the beginning of the action SAY they agree on everything but then later on realize that they disagree on something. That ends up costing the parties MORE money because they have to pay the first lawyer and then hire two more lawyers.

    I do not necessarily understand the NEED for a mediator if, in fact, the parties already AGREE. Tn law requires mediation in a divorce if the parties cannot agree unless the court excuses the requirement of mediation. But if you guys already agree then WHAT exactly is he mediating? The lawyer can draft all of the documents needed for a divorce and if there is nothing to mediate then you do not need a mediation report.

    The answering of this question does NOT establish an attorney\client relationship. If you wish to hire me call me... more
  2. Estela Matta


    Contributor Level 16


    Lawyer agrees

    Answered . I do not know the laws on TN, but it MA this would be highly questionable--even with both parties' consent. It is not the fact that the lawyer will act as both counsel and mediator that is dubious; its the fact that he/she will be representing both sides that make me wonder. But, as with almost anything in law, you can waive a right. You have the right to counsel that represents your interests (which are distinctly different from your spouses). If you chose to waive that right, and if the state laws allow it, then its "kosher". I would advise that you speak to a counselor on your own and explore the rights you are waiving in agreeing to a joint representation.

    This answer is provided for informational purposes only and it is not intended as legal advice. Additionally, this... more
  3. Stephen Ross Cohen

    Contributor Level 20

    Answered . Yes so long as you both agrewe.

    My name is Stephen R. Cohen and have practiced since 1974. I practice in Los Angeles and Orange County, CA.... more
  4. William Edward Morgan

    Contributor Level 4

    Answered . Every state differs with regard to the ethics standards for mediators. In North Carolina, there was a recent opinion that states clearly that, although a mediator can "serve" two unrepresented parties, in such a situation those parties need to seek separate counsel to draft the final divorce settlement. The parties can agree on "bullet points" with the mediator.

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