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Manual > 13 - Drafting the Agreement > Issues for the Mediating Atty

Issues for the Mediating Attorney

The attorney mediator should be understood to have full ability to draft mediation participants' settlement agreement, conditioned upon the mediator's encouragement that the parties obtain legal counsel and advice that they have any agreement reviewed by independent legal counsel prior to signing that agreement.

A challenging issue exists in whether the attorney mediator is also capable of developing documentation for processing the parties' agreement at court as a stipulated order, judgment or decree. Recognizing that the attorney mediator could, almost certainly, attach any such court filing form as an exhibit to the settlement agreement, and that the mediating attorney is presumably as capable of drafting such documentation as representational counsel, it would seem that there is no logical reason to prohibit the mediating attorney from developing any and all documentation that the mediation participants want developed.

This does not necessarily mean that the attorney can appear in court on behalf of one or both parties. Rather, as a part of the mediation work product, it is suggested that the mediating attorney can develop court documents for the parties to file as they desire.

Another challenging issue for the attorney mediator is whether he or she can draft additional documentation associated with a marital settlement, divorce decree, or other legal resolution. For example, can a divorce mediator develop real property transfer documentation or wills which are described to be developed by the parties in their marital settlement agreement? Here, it is likely best for the mediating attorney to rely on a concept of "informed consent" with regard to his or her ability to develop such additional indicated documentation. The mediating attorney is advised to obtain the informed consent of all involved mediating parties prior to serving and representing one of those parties with regard to an issue which may be viewed as a part of the subject matter of their mediation.

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