Can A Divorce Mediator Commit Legal Malpractice?
No. Any divorce attorney or divorce mediator will tell you that. The laws and Court rules in Massachusetts protect mediators…so they can help facilitate settlements and avoid costly litigation.
What If the Divorce Mediator Drafts A Complex Divorce Agreement?
However, what happens when the mediator steps over the line? What if she, or he in this case, also drafts a complicated divorce Agreement? And, in the case at issue, the Settlement Agreement has contradictory terms regarding a very important aspect of many divorces – alimony. Then what happens?
In a case in which we represent a victim of mediator malpractice, our client and his former wife utilized the services of a divorce mediator. They came to an agreement, however, instead of the mediator instructing each party to go and retain their own lawyers to formalize the agreement, the mediator drafted AND finalized the Separation Agreement for husband AND wife to sign. The Court approved of the Separation Agreement and the parties went on their separate ways. Five years later, however, the wife filed a request for alimony, saying her circumstances had changed and that the Agreement should be modified.
The Uniform Rules of Dispute Resolution (Rule 9(c)(iv)) prohibits mediators from providing legal advice, and, while simply outlining a Settlement Agreement is not providing legal advice, drafting a Settlement Agreement that “involves concepts and legalese that must be explained by a lawyer” constitutes advocacy, and is beyond mediation, according to Judge James H. Budreau in the case we have before him. The decision, after the defendant mediator filed a motion to dismiss our client’s legal malpractice case, will have important ramifications for our client.
In a Separation Agreement where there are contrary terms about a significant issue, alimony, and each party subsequently views those separate parts of their agreement to their own advantage, how is this to be resolved? In our client’s case, he thought that alimony was waived forever because of the way the Separation Agreement was written. However, when his wife, through her new lawyer, asked the Probate Court for a Modification, there was contrary language in another part of the agreement that she relied upon. That language, we allege, was written by the negligent divorce mediator.
What Should Happen After a Successful Divorce Mediation?
First, the mediator should outline all the agreed upon aspects of the agreement. The mediator should make a list, or even provide a draft agreement. The mediator could also point out the possible things that could change. For example, with children, the Court always retain jurisdiction regarding custody and visitation.
Second, the mediator needs to get all parties consent to draft the agreement. This should be a part of the process and should not be overlooked.
Finally, the mediator should have the parties go to their own, separate, attorneys to review and explain the Separation Agreement. This is a critical agreement involving both present and future assets, alimony, and often children.
Victims of Legal Malpractice Should Retain Experienced Counsel
If you have been a victim of legal malpractice, in a divorce mediation or other matter, contact the law firm of Burns & Jain. They have represented hundreds of victims of legal malpractice. They have the experience. They are aggressive and effective. Call 617-227-7423 for a free consultation.