Can You Be a Litigator and a Mediator?

“You know what, Ken? A bad idea would be to let your client walk out of here today and drag this thing out for another year, wasting more time and more money. The only good idea is to let me and John do our job and mediate this thing right here.” -Jeremy Grey, Wedding Crashers 

When I tell people I’m a divorce mediator their first comment is usually “like in Wedding Crashers?” Well, kinda. I agree with the famous quote above about not wasting time and money if I’m allowed to do my job, but sometimes clients and their litigation-focused attorneys can get in my way. My goal is to not only save my clients money during what is often the most financially insecure time of their lives, but also to help them forge a new relationship together and to do so in an efficient manner. 

I’ve spent time in court, racking up those billable hours while pitting one party against the other and trying to find and then prey on the vulnerabilities of the “enemy.” Then my own life events changed my perspective on my career. 2012 is the year I became a father and also lost my own father. My Dad was my role model and best friend and to lose him at the time when I needed him most was jarring. My mindset shifted — I wanted to be proud about how I was going to support the family that my wife and I were building. So I took a chance and left the law firm to open a divorce mediation practice. 

After having gained and lost so much in one year it was surprisingly easy for me to leave the pitbull mentality behind. I felt good knowing that I could use my negotiating skills for good and help couples and families as they navigated the demise of their marriage in a healthy way. 

Should you trust your lawyer when they say they can be your mediator? 

Not all litigators can make the shift to being a mediator and it’s especially hard to be both at the same time. I cringe when I hear about a litigator who offers their service as a mediator because of the challenges the attorney faces and what that means for their clients. Many of my clients often have an attorney they consult with as we navigate the divorce but the common goal is to efficiently come to a marital settlement agreement. 

A litigator's goal is to fight for their client, even when what their client wants is unrealistic or is going to cost more in legal fees than the value of what they are fighting for. For a litigator to stay focused on both impartiality and neutrality while working on multiple cases at the same time is close to impossible. A litigator is also often beholden to billable hours which means taking the time to listen to both sides can end up being quite costly for the clients. A mediator’s role is to fight for fairness and typically charges a flat rate for a certain amount of hours and is trained to refocus their clients to stay on track and not drive up the cost for extra time. 

Impartiality vs. Neutrality 

In mediation you balance being impartial and neutral while also being objective. A dedicated mediator has gone through many trainings and certifications to establish how to maintain that balance. In my practice I often find myself in a therapist’s role, making sure each party feels heard whilst offering conflict resolution support. I have to keep my own biases out of the discussion but also ensure my clients feel connected to me so they can trust me in making decisions. 

At the beginning of the mediation process I also make sure that my clients have mutual respect so that we can come to a timely and cooperative resolution. The goal of mediation is teamwork with the hope of maintaining a relationship between the former spouses afterwards. My job as mediator is to stay neutral and not take sides and also make sure each spouse feels supported. I need to take each of my client’s wants and needs into consideration and keep my personal viewpoints and opinions to myself. My job is to treat them equally and fairly and maintain the objective of coming to an agreeable resolution. 

When you’re a litigator acting as a mediator it is much more difficult to switch back and forth between these mindsets. You don’t have one client, but two, and you cannot show favoritism to one or the other. You have to give equal time to each client and communicate with exactness and ensure each spouse understands and feels confident in the process. 

Flexibility 

One of my favorite sayings is “God gave us two ears and one mouth for a reason” and that is because as a mediator you end up doing a lot more listening and a lot less talking. And often that takes place on nights and weekends when it is convenient for the clients. A dedicated mediator doesn’t have traditional office hours and that is probably one of the biggest differences between their practice and a litigator acting as a mediator. Many couples are unable to meet during work hours or when children are present and a mediator can find the time to meet when it’s comfortable and convenient to all parties.

Although my family may not always appreciate it, I make myself available to my clients at all times. Though it may take me away from family time sometimes, I am a better husband and father because of the work I do. I know that I’m not taking advantage of people in their most vulnerable moments and that I am helping them transition to the beginning of the rest of their lives with class and dignity.

                       

Scott Levin

Chief PeaceKeeper Scott F. Levin Scott Levin is the founding partner of San Diego Divorce Mediation & Family Law (858-255-1321). Mr. Levin is an active member of The Academy of Professional Family Mediators and many other organizations that promote the benefits of family mediation. Scott is also a licensed attorney in the state of California… MORE >