The Scrivener’s Dilemma in Divorce Mediation: Promulgating Progressive Professional Parameters

A festering ethical question for attorneys who practice divorce mediation is the propriety of an ADR neutral drafting the settlement agreement that memorializes the understandings a separating couple reach through mediation and then crafting the forms needed to allow those spouses to obtain an uncontested divorce decree. States are inconsistent in their rules permitting mediators to utilize their professional expertise to complete the paperwork process, even though it would appear that best practice would be not only to permit but to encourage mediators to scribe the couple’s documents at the conclusion of their negotiations, and to guide them through the bewildering bureaucratic papers needed to obtain their divorce decree. The debate over divorce mediator drafting is, however, simply part of the larger controversy of who, in the future, will be permitted to be a dispute resolution professional in this nation. Modern mediation attorneys are seeking to discredit the false assumption that divorce is essentially a legal problem, and declining to perpetrate the antique myth that every couple’s divorce need be resolved in a trial analogous to a criminal prosecution—a dramatic courtroom battle in which past wrongs will be proven, a “bad” parent identified and exposed, and “rights” determined by a wise judge applying clear legal precedents to the facts of a particular couple.