The Pros and Cons of Pro Se Mediation

Given the high cost of contested divorce litigation and its emotional aftermath, many people are opting for the pro se route. In South Florida, approximately 60% of divorce cases contain at least one unrepresented party. There is a growing market of services available to pro se divorcees, including the, quite sadly unregulated, online services which advertise "Do It Yourself" Divorce and other services for a fee far less than what an attorney would charge. But, as some of my clients have learned by engaging these “services” and receiving less than adequate results, you often get what you pay for.

Pro Se Divorce Mediation has emerged as another popular choice and has become a one stop shopping alternative in the vast array of lawyerless divorce methods. Although many family law mediators are attorneys, they are prohibited from giving legal advice when acting as mediators. However, mediators can prepare the forms which must be filed in conjunction with a divorce, including a marital settlement agreement. Pro se divorce mediation has received some much deserved criticism and some grudging recognition. There is a Florida Bar approved course for mediators to learn the complete process of pro se divorce mediation. But many lawyers continue to believe that pro se mediation is merely an ethics complaint waiting to happen.

Opponents argue that it is impossible to mediate a complete divorce agreement without giving legal advice and that pro se mediation will create an ethical dilemma where a lawyer-mediator is either forced to give legal advice, which violates that Rules For Certified and Court Appointed Mediators or to bite his or her tongue and allow parties to create either an incomplete agreement or one that does not protect the rights of one or both parties, which also violates the Rules.

Proponents, and the pro se public, seem to believe that a cost effective way to divorce is mandated. Many people can't afford to spend thousands of dollars litigating over their property, children or both, and many others do not want to. In many of these instances, the issues are relatively simple, from a legal standpoint. For instance, the parties are both salaried employees, earning similar incomes, and issues such as child support are reduced to a formula that can be calculated. Assets and liabilities are known to both parties and it is just a matter of who gets to keep (and pay for) what.

In cases that are more complicated, where there are more assets to divide, questions involving alimony, pension and social security benefits, valuation issues and/or parties who don't have knowledge of the entire financial picture. These parties are opting for mediation as well and presenting a challenge, if not a dilemma, for a mediator.

It appears that a hybrid solution might be necessary. Mediation can be a useful tool in helping parties resolve certain issues. However, the necessity of obtaining legal advice cannot be ignored either. Some divorcing couples are taking advantage of the limited representation now allowed by the Florida Bar and consulting with lawyers before, after and even during mediation. This allows the parties to negotiate without costly litigation and still receive much needed legal guidance as to their rights and responsibilities.

It is impossible to give an answer as to whether pro se divorce mediation is right or wrong. That depends on the particular case. But it is certain that the public is seeking alternatives to the traditional lawyer driven and costly divorce and that attorneys and mediators are seeking to balance accommodation of the public’s desire with their ethical responsibilities.