One of the many concerns a party considering divorce will likely have is trying to lessen conflict with their spouse and save costs. Some parties do not wish to seek assistance of counsel in their divorce, and some may not have the financial resources to do so. Self-represented parties should know that while litigation and hiring an attorney can be costly, some options on the market for dispute resolution may not adequately protect their interests.
In surveying the cost-effective options for getting a divorce, a party may consider the idea of hiring one attorney for both spouses, especially if the divorce is likely to be uncontested. Parties should know that dual representation of two divorcing spouses by one attorney is prohibited in Wisconsin. There are many reasons why dual representation of divorcing spouses is prohibited, which are related mostly to preserving the attorney’s role of an advocate and preserving the loyalty of the attorney-client relationship. First, attorney loyalty is extremely important to clients, and the impaired relationship caused by disloyalty is likely to make the attorney’s ability to provide effective representation more difficult. Additionally, one party may fear the attorney is giving more deference to what the other party wants, and that representation will be less zealous as a result of the attorney’s desire to maintain not one but two clients. In reviewing the foregoing reasons, it may now seem obvious that one attorney cannot represent both spouses in a divorce, but there are some attorneys in practice who market their services as strictly “mediation” when they are really taking on dual representation.
Mediation is a common form of dispute resolution used prior to or in conjunction with litigation. It can be very useful for parties who have little disagreement on the issues relating to their divorce. Spouses who have attorneys and self-represented individuals can both benefit from the assistance of a mediator in their case. Because it is easy for self-represented parties to feel confused as to the role of the mediator, the mediator should fully explain their role as a neutral party that does not advocate for either spouse. This is especially important for mediators who are also practicing attorneys, as is common in Wisconsin. The mediator will work with the parties to come to an agreement, and the mediator may also memorialize the agreement reached by the parties in written form. Represented parties’ attorneys will then draft any necessary documents to be filed in court. However, the mediator should not be preparing any pleading documents for self-represented parties, including marital settlement agreements or other documents filed in court that may affect the rights of the parties. This is because the preparation of pleadings likely constitutes the practice of law in Wisconsin, and thus the prohibited dual representation is taking place. Mediators may also refer the parties to resources for self-represented individuals that can assist them in preparing the necessary pleadings.
Self-represented parties in cases where mediation failed might also explore the option of hiring an attorney to deal with the disputed issues. It makes sense that a party may want to hire an attorney who is familiar with their case, and the former mediator may seem like a good choice. However, the ethics rules imposed on Wisconsin attorneys prevent an attorney/mediator from acting as an advocate in a case after having served as a neutral third party, even if both parties consent to the attorney doing so. The conflict of interest indicated by representing two spouses to a divorce is so serious that it is unwaivable by the parties.
Parties to a divorce should be aware that there are certain options for dispute resolution that will not protect their individual interests the way an advocate will. If hiring an attorney is not possible, there are still resources available to self-represented parties through which they can seek information on their rights and prepare court documents. However, parties’ expectations should be managed so that they do not believe they have an advocate on their side when that is not the case. Parties should consider it a red flag if a mediator suggests preparing marital settlement agreements or other court documents affecting their rights in the divorce, as their individual interests will not be fully considered.
Inside Track, “Can a lawyer-mediator draft documents for a divorcing couple after mediation?” Timothy J. Pierce, May 19, 2010, Volume 2, Number 10
Wisconsin Supreme Court Rules of Professional Conduct for Atrorneys