I recently met a couple who arrived for divorce mediation services, because one party's co-worker advised that mediation was cheaper than hiring a lawyer. As usual, I began our meeting with an explanation of the mediation process (they had been invited to visit my blog).
The parties were surprised when they learned the scope of my services as a mediator. They had agreed upon many issues asking me to help them on the several points they had not resolved and to alert them to topics they missed.
I explained that I would work through these problems with them as a neutral and that they would need to bring in financial documentation. I told them about the end result of mediation - a Memorandum of Understanding containing their agreement. Then they hit me with a stunning question.
"Aren't you coming with us to court?" Their expectation was that mediators are just less expensive lawyers who perform the same service. In my experience, no ethical divorce mediator represents one party in an uncontested divorce based upon a mediated solution.
A mediator's role in Divorce Mediation is to be a neutral party facilitating a negotiation process between two divorcing parties. A mediator does this without advising either party whether their agreement is the best deal. The mediator directs that the best information is available to both parties and helps the couple communicate their needs, wants, fears and thoughts as a solution is crafted.
It is unethical for a mediator to be a neutral and then represent one party in a court process. Just think how this plays out. The mediator helped the parties reach an agreement that is deemed fair and acceptable to both parties. If the mediator would then represent one of the parties, his/her legal obligation to his client might involve telling a client that he/she could negotiate a better deal (the mediator heard all of the negotiations). Even if the lawyer had mediated the agreement, he or she would be obligated to tell the client that he/she gave up too much. That is the basis for the dual role as being unethical.
When you meet with Steven Hirsch, understand that he can be your divorce attorney or mediator, but not both.