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For years, I’ve heard that some non-attorney mediators write their own settlement agreements. When I first started a mediation practice, my partner was an attorney, and we’d mediate together. Although I would write certain parts of the settlement agreement, she often modified the language and always reviewed the agreement before it was sent to the clients.
As the years went on I became a sole practitioner, writing memorandums. My memorandums would then go to an attorney and the attorney would write the legal agreements.
Although I’ve participated in the writing of over 1,000 agreements, when I send out my memorandums to the attorneys, I sometimes have my language rewritten, because the settlement agreements really need to be written from a litigation perspective. If the agreement was brought before a judge, would the intent of the sections of the agreement be clearly understood?
I don’t think mediators without a legal education should be writing legal agreements. One of the arguments that these mediators use is that car salesmen write their own agreements. Like them, you take a blank agreement written by a lawyer and just fill in the relevant information, so you’re really not writing anything that could be construed as legal writing.
I don’t agree with that. I feel attorneys are better suited at writing the agreements. Mediators do well helping clients to negotiate the terms of their settlement agreements. Lawyers, trained in legal writing, should write the legal agreements.
When lawyers act like mediators and mediators act like lawyers, that’s a problem.
Comments from Social Media
Hi Don, for mediators, the key issue is competency. I fully agree with your statement ” I don’t think mediators without a legal education should be writing legal agreements”. In Ireland there are two steps to legally moving apart as married parties, you can (A) legally separate either by way of a Deed of Separation agreed in mediation and/or with the assistance of solicitors (attorneys) at any point where both parties agree the marriage has ended- or one party can file an application for a Judicial Separation (court ordered) one year after the marriage has ended and (B) Divorce; which is only possible where the parties are apart 4 years; so an earlier negotiated separation agreement is common and must be carefully done, mindful of the legal context. During the course of my PhD research in the Irish Courts I heard mediated agreements severely criticised as being badly worded, constructed in legally unenforceable language or content, and constructed by a person who clearly did not understand the law. I am running a family mediation pilot project at the moment in Ireland (Kilkenny)- it is a given that all lead mediators in the pilot must have appropriate legal training (most cases are co-mediated). All agreements must be drafted and completed within the mediation process, and the legal representatives for the parties are actively involved from the start providing independent legal advice to their clients and giving feedback to the mediator in terms of amendments/additions. If the final result is a Deed of Separation it is signed in mediation once the legal representatives are satisfied; if pension adjustment orders are required a Separation agreement cannot be concluded in mediation as it acts as a bar to pension apportionment, the agreed terms must be ruled by the court as a Judicial Separation application and the court makes pension adjustment orders. A mediation colleague recently asked my advice where he had mediated a Deed of Separation 2 years earlier and did not realise that he could not “revisit” and amend that agreement as the wife now wanted part of the husband’s pension, which was now active. That mediator had no knowledge of Irish family law and was blissfully unaware of the harm he had done in a situation where the only asset of the marriage was the husband’s large State pension. The rules for our pilot project and our private practice are; the lead mediator has responsibility for all drafting, must have legal training, and must write the agreements in legally enforceable language and structure. This does not mean that the agreements are written in legal language that is indecipherable to the client, plain English works just fine! Co-mediators who do not have legal training may write parenting agreements where they have appropriate training, however the final agreement is the responsibility of the lead mediator. Where a party does not have legal representation then any agreement must go before the court to be ruled and all consent terms for Divorce must go before the court (as provided in our Constitution).
Dr. Roisin O’Shea
Very good points.
Donya Zimmerman, JD
I am a non-attorney mediator who drafts MOU’s. I do so under the following conditions: I use the state approved format available to pro se parties (uncontested divorces). I clearly state at the top of the MOU: “This MOU is not intended to be a legally binding document. The sole purpose of this MOU is to memorialize the points of agreement reached through mediation between the parties in preparation for the completion and filing of a legally binding Marital Dissolution Agreement with the appropriate court. The parties acknowledge that they have each been advised by the mediator to seek independent legal counsel to review these agreements and expressed desires.”
Charles A. Hill