What is the Difference between Mediators and Lawyers
Although both lawyers and mediators are professionals who work with conflict resolution, mediation and law are distinct professions. Education and experience as a lawyer is a good background for becoming a mediator, because lawyers already know how to interpret laws and analyze complicated factual situations.
A lawyer who has experience as a family law attorney has the right combination of knowledge and experience to become a good family law mediator, just as a lawyer who has broad experience representing businesses generally has the right background to mediate contract or employment disputes. It is not necessary, however, for a mediator to be a lawyer, provided that the mediator has gained solid knowledge of the applicable law through some other kind of experience. For example, a successful businessperson may also be a good business mediator.
Having the right background in terms of knowledge and experience is just the beginning. Mediators go through training to learn how to facilitate disputes. Within more specialized areas of the law, such as family law, a higher level of training is necessary to ensure that the mediator knows how to handle the issues that come up most frequently. For more information on training of family law mediators in New Jersey, see: How Does a Lawyer Become a Mediator?
Roles of Mediators and Lawyers in Legal Disputes
Although both attorneys and mediators are trained to handle conflict, there is a key difference in the role of an attorney and the role of a mediator in dispute resolution. An attorney acts as an advocate for a party on one side or the other of a dispute. A mediator does not act as an advocate for either party, but instead remains objective, guiding both parties through the resolution process and helping them to navigate the difficult emotional terrain that so frequently accompanies conflict.
A good mediator knows how to look at an issue from all sides, suspend judgment, and be supportive without taking a personal position. Learning to take a neutral role does not come naturally to everyone, and some attorneys find it particularly challenging to switch out of the advocacy role. While some attorneys are able to switch back and forth easily between the role of an attorney and the role of a mediator, attorneys who become mediators and choose to concentrate their practices in mediation are generally people who are more attracted to the idea of negotiation and collaboration than to the idea of fighting battles from polarized “win-lose” positions.
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A mediator who is also an attorney is generally highly skilled at providing legal information, but the attorney-mediator cannot give legal advice. For example, if you and your spouse decide to mediate with an attorney-mediator, the mediator can explain to both of you what the New Jersey child custody factors are, or how the child support guidelines work, but cannot advise either of you regarding what your best position may be in light of the information. Although attorney-mediators do not give advice, they are generally more attuned than non-attorney mediators to situations requiring legal opinions, and can therefore make appropriate suggestions to parties about when it might be good time for them to step back and seek a consultation with their independent attorneys. Your independent attorney will then serve as your advocate, showing you the strengths and weaknesses of your position and helping you create an argument that relies on the strengths.