People often ask me if I can draft the paperwork for them and their soon to be ex-spouse. After all, one attorney has to be cheaper than two, right? Attorneys in California (and beyond) cannot concurrently represent the interests of two people at the same time. This would be a clear violation of California's Rules of Professional Conduct. See the extensive list of ethical rules imposed by the State Bar of California here.
The reasoning behind these rules flows from an attorney's duty of loyalty to their client. California Professional Conduct Rule 3-310 requires an attorney to avoid the representation of adverse interest to their existing clients. Spouses contemplating divorce, or dissolution as some prefer to call it, clearly may have adverse interests. Rarely do you find a couple headed to divorce who are on good terms and have a unified set of interests. What is commonly seen, however, is a couple who know they cannot afford to each have an attorney and litigate every matter in dispute.
Enter Divorce Mediation
Mediating a divorce can help you save substantial amounts of time, money and resources that would be better applied to your children or re-building your future. You can avoid going to Court entirely if you are making good progress through mediation. Both parties are more likely to take reasonable positions on issues which will result in less polarization of the individuals. There is a great feeling associated with, "taking the high road."
Question: But wait, Matthew, didn't you just say an attorney can't represent two people with conflicting interests?
Yes, I did. An attorney can serve as a mediator for both parties, because they remain neutral. A mediation attorney does not represent either party, rather, gathers information from both parties during meetings where both parties are present. All communication is typically done transparently, with both parties receiving the same communications through email, mail or typically only phone calls with office staff to avoid any potential bias.
Question: How do I know my interests will be upheld if I decide to go to a mediator to resolve my divorce?
You won't. Not if the mediator truly remains neutral. Mediators often times explain the law when there is a sticking point to assist the parties in moving past disagreements, but they rarely explain the full spectrum of possible results and range of discretion the Courts have when resolving a particular issue.
There is a better answer though: Consulting Services. Any good mediator will recommend that each party in a divorce mediation case consult with their own attorney throughout the process. That way, each party is able to make an informed decision about the agreements that are ultimately reached in mediation. Sure this is a little more expensive than having just the mediator, but I have had plenty of clients who wish they spent a little more money up front to avoid the mistakes they made in mediation that may cost many thousands to undue, if at all possible.
I am proud to offer consulting services as part of my practice. I think that parties whom choose to mediate their cases typically have better relationships with their ex-spouses than parties who resort to typical Court litigated cases. This is of particular value when you and your soon to be ex-spouse have children, and will continue to be parents to your children for the unforeseen future.
Even if you don't want a consulting attorney and are just looking for a good mediator, I can provide you with referrals at no charge. No matter where your case is or has been, I encourage all of my clients to consider mediation.
Question: Are there any other options?
Of course. Many times an attorney can act as a Scrivener (AKA. Ghostwriter), or someone who handles the complex task of composing legal documents on your behalf in the background, while you remain a self-represented, or Pro Per litigant. There is always pure consulting as well, where a person handling their own divorce or parentage action can get help on an as needed basis throughout the process, saving a substantial sum of money. There are other approaches which may be better suited to your goal-set. The common theme is that you should be working with an attorney who is able and willing to work with you in a flexible manner, keeping your priorities in focus.