This is one of the most common questions I get.  The answer is no.  Why?  There are a number of reasons.

  1. Mediating a dispute is not about the law.  Trials and motions are about the law.  Mediating is about identifying the issues in dispute, fact finding and dissemination, generating potential solutions, quantifying risks and outcomes, identifying the interests of the parties (as opposed to their positions and posturing) and then finding the solution(s) that the parties can agree to.  A mediator needs to understand some psychology (“human nature” and emotions), how people make decisions, be comfortable with numbers (if the case deals with money), etc.
  2. Mediation and advocacy are two different and distinct skills.  The training for both is different and the ethics considerations are different as well.
  3. The mediator can not give legal advice to the mediation participants.  An attorney would be violating the rules of professional conduct by either not being neutral or representing adverse parties in the same matter.  A non-attorney would be violating the unauthorized practice of law.
  4. The mediator is not making any decisions. Only the parties are making the decisions.
  5. In civil cases, each side generally has an attorney at the mediation.  They will often have different legal opinions.  A third opinion from an attorney mediator does not make one side “right” or “wrong”.  In fact, it can often embarrass the “wrong” attorney in front of his client.
  6. A non-attorney can be trained in the subject matter area required (divorce law for instance) in order to educate the parties.  Remember, giving legal advice is forbidden.  In civil cases, the participating attorneys are usually more than happy to educate the mediator.
  7. In civil matters, a jury of your peers is made up of non-attorneys (it’s pretty rare that an attorney makes it onto the jury).  Who better to give some level of feedback as to how the jury might perceive someone’s case?

The Florida Supreme court has recently indicated that being a lawyer or a retired Judge does not give a mediator any advantage or greater success in the role of mediator.  There are many attorneys who are good mediators just as there are many non-lawyer mediators who are good (as well as bad mediators from both categories).  A mediator is good and effective because they have the mediation skills and experience, not because of what their “other” job is.