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The Bias Against Non-Attorney Mediators

In the past eight years I have spent the majority of my time building up a busy divorce and custody practice. We now have six attorneys and conclude hundreds of family law cases each year.  The practice is in Florida and mediation is an integral part of every case. In Florida, you cannot get to a temporary relief hearing before mediation. And in most jurisdictions, more often than not, you cannot get to trial without a second mediation.  That means we are involved in a very large volume of mediations.

For every mediation, we make an initial decision that determines what kind of mediator we use. If there is no money – we use the court sponsored mediation department. If there is money – we use a private mediator. Here is where there is a major division in types of mediators. For court provided mediations the mediator is almost never an attorney. For private mediations the mediator is almost always an attorney.

The fact is that in family law cases there is a bias against non-attorney mediators. As a family law attorney / family law mediator, I am in a position to see both sides of the fence.  That has allowed me to learn the attributes of attorney-mediators and what is missing from many non-attorney mediators. Fortunately many non-attorney mediators have bridged the gap and offer attributes that allow them to get more business, and have more success in non-pro se cases.

Here is a list of three attributes that are in demand in attorney-led cases:

1. Assertiveness – a/k/a “big mouth.”  It may come as a shock and surprise to many of you but attorneys tend to be outgoing, assertive, and sometimes extremely annoying. We are trained to be that way and enjoy success when we can meet aggressive competition head-on.  When it comes to the mediator, attorneys tend to admire someone with an equal dose of “big mouth” syndrome.  A mediator that can bridge the roles, have a big mouth, but observe mediator ethics tends to be someone that attorneys like.  Of course you do not really have to have a big mouth. But assertiveness is a must.  Divorce and custody cases tend to be nervous, angry, and defensive. A firm hand and personality not only gets the job done, but it instills confidence.

2. Knowledge – a/k/a “not clueless.”  I have been in court provided mediations where the mediator exhibited a very basic disconnect on legal knowledge. In one particular instance, the mediator seemed to think a mortgage could be assigned to the spouse that would not be receiving the underlying real estate. The mediator would not listen to advice and the cluelessness caused the entire mediation to be an exercise in futility.  I consider that concept to be a basic part of Florida family law. It is one of several dozen concepts every family law mediator in Florida should know. Of course a mediator does not have to become a legal expert. But there are certain basic concepts in every area of law. You should not be a mediator in family law if you know nothing about it. Or at least, never be completely clueless.

3. Be equipped.  For many attorneys, mediation is an exercise in power, posturing, threatening, and negotiating.  The first thing many attorneys do not want to do is to mediate at each other’s office. It does happen, but more objections than not will arise in that sort of situation. Because having a mediation in the office of either attorney gives them a psychological advantage. You might think reasonable people do not care – but clients are not reasonable. They always care.  If you are offering private mediation and are charging a healthy fee, make sure you have a suitable location of your own. It could be nothing more than an executive center conference room. Just make sure it is a neutral conference room. The other part of being equipped: ditch the hand written agreements. Attorneys really appreciate settlement agreements that can be easily read. You would be shocked at how many agreements look like they were written in a bar a 2 am in the morning. Make sure you have a laptop and decent printer. It will be appreciated and will raise the chance of getting a return engagement with each attorney.

The bias against non-attorney mediators is grounded in real world reasons. Remove the source of the reasoning and you will be sure to be in demand.


Howard Iken

Howard Iken is a Divorce, Custody, and Paternity lawyer and am a member of The Florida Bar. He is also a Florida Supreme Court Certified Family Law Mediator. Beside my degree in law, he has a Master of Business Administration and am a licensed Real Estate Broker. He has years… MORE >

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