Can an Attorney Mediating My Divorce Represent me in the Future in Massachusetts?

When someone is a mediator for spouses getting a divorce, they cannot later represent either spouse. Sometimes we will be representing someone and they’ll say “Oh, my spouse has seen the light; they want to go to mediation, can you do the mediation now?” The answer to that no, because it is a conflict of interest. You have represented the one spouse and cannot represent both spouses. It’s a conflict ethically, but it’s also a conflict as a practical manner.  In my view, the spouse that was not your initial client is always going to feel like your siding with the other spouse. That’s something you don’t want to happen during the mediation.

During mediation, I make my best efforts to make sure that both spouses are heard, that they feel like there’s no bias and they are treated in an even-handed manner. For my mediation participants, if either party is going to communicate with me, they need to do that in the presence of the other spouse whether that be physically, on the phone, or by e-mail. If it was an email, they would copy the other with my response. If it were by phone, we’ll set up a telephone conference where both could participant. If it’s in person, they would both be in the same office with me. There are rare occasions where I feel like it’s necessary to speak with one of the spouses individually, and before that would happen I’ll ask the other spouse if they’re okay with that. I have them step out for a moment and come back in. A general way that I like to handle a mediation however, is that both parties participate all of the time.

This informational blog post was brought to you by Cynthia L. Hanley, an experienced Mansfield, Massachusetts Divorce Lawyer.