All mediators, lawyer and non-lawyer, should understand the boundaries a mediator must observe so as not to cross the line into the unauthorized practice of law. Attorney Mediators have much more leeway as there are certain legal functions they can perform as attorney mediators that a mental health or financial mediator must avoid. The three main areas of concern are: drafting agreements; providing legal information; evaluation, advice and preparing court forms.
1. Drafting Agreements: Only attorney mediators can draft separation and dissolution agreements to be filed with the Court. These agreements are legally binding contracts, (See Monroe v. Horwich, 820 F. Supp 682. (D. Conn. 1993)) that can only be drafted by Attorneys. The Statewide Grievance Committee has found that a paralegal preparing papers for self-representing parties to an uncontested divorce is the unauthorized practice of law. Also, Statewide Grievance Committee v. Patton, 239 Conn.251 (1996), similarly found a document preparation service offering to prepare documents in uncontested divorces for self-representing parties constituted the unauthorized practice of law. Financial and mental health mediators can refer their mediation clients to family law attorney mediators who can draft the Divorce Separation Agreement using the non-lawyer mediator’s notes, memoranda and all other necessary legal documents.
2. Providing Legal Information, Evaluation and Advice: Only attorney mediators can apply legal principles to particular facts and evaluate the strengths and weaknesses of a legal position. To do so as a non-lawyer is the unauthorized practice of law. See Grievance Committee v. Dacey, 154 Conn. 144. All Mediators should refer their clients to consulting or review counsel for legal advice. While it is appropriate for an Attorney Mediator conducting evaluative mediation to provide predictions and assess merits, it is not appropriate for a Mediator to give legal advice. (See, Standard 3 of the CCND Standards on Mediation and the Unauthorized Practice of Law).
3. Preparing Court Forms: Only attorney mediators can draft Court Forms or assist clients in preparing same. Under CBA Formal Opinion 35, attorney mediators can provide legal information and advice to their mediation clients regarding these forms. The law in this area is complex and sometimes contradictory. Individual cases and opinions often hinge on whether or not a non-lawyer exercised “legal judgment” in drafting or assisting third parties in filling out legal forms. Many family court forms require the exercise of legal judgment, such as Complaints and Financial Affidavits. CDFA’s, CPA’s and other financial mediators should become well familiar with the legal opinions and CCND standards in this area. This article does not address the appropriateness of non-attorney mediators accompanying their mediation clients to court for an uncontested divorce, as it is not relevant during Covid-19 Pandemic.
For a thorough examination of the unauthorized practice of law please see the Connecticut Council for Non-Adversarial Divorce (CCND) Standards on Mediation and the Unauthorized Practice of Law, adopted 2014, revised and readopted, 2014 and 2018 at www.gooddivorcect.com. You can also find standards for drafting and consulting attorneys at this website.
Connecticut Council for Non-Adversarial Divorce: Newsletter – September, 2020