One Lawyer, Two Parties

Articolo dell'Avv. Francesca King pubblicato nella newsletter del Dispute Resolution Committee dell'IAFL – International Academy of Family Lawyers (aprile 2026, 4ª edizione). Testo originale in inglese.

One Lawyer, Two Parties: Neutrality in Consensual Divorce Proceedings

In several European jurisdictions, it is possible for one lawyer to assist both parties in a consensual separation or divorce. At first sight, the model appears efficient, cost-effective and well suited to couples who have already reached a substantial agreement. Yet, when the lawyer's role expands beyond formalisation and into the territory of negotiation, the question of neutrality becomes far more complex than it may initially seem.

In Italy, a lawyer may assist both spouses in a consensual divorce proceeding (and in the necessary prior step of legal separation). The Italian Code of Civil Procedure does not specifically regulate this model. However, an important limitation is set out in Article 68 of the Code of Ethics, which provides that a lawyer who has jointly assisted a married or cohabiting couple may not subsequently act for one party against the other in future family disputes.

This model has long existed in other civil law jurisdictions, such as Spain. It was previously recognised in France, although it has not been formally acknowledged for approximately a decade. In Germany and Switzerland, a common lawyer may be appointed only after the parties have already reached an agreement. The regulatory frameworks differ, but they all confront a shared issue: how to reconcile professional independence with dual assistance.

Traditionally, joint assistance has been used in low-conflict scenarios. The couple negotiates privately – often through what might be described as a “kitchen table” discussion – and approaches the lawyer once the essential terms have already been defined. In this setting, the lawyer's role is primarily technical. The professional provides joint legal information, clarifies rights and obligations, drafts the agreement, and manages the procedural formalities, such as filing the joint petition with the court.

The difficulty arises when couples seek joint legal assistance before the agreement is complete. Increasingly, parties turn to a single lawyer even where some – or many – of the substantive terms remain open, contested or undefined. In these circumstances, the lawyer's role becomes significantly more delicate.

On the one hand, the lawyer is expected to remain neutral, working in the interest of both parties. On the other, the lawyer remains a legal expert, from whom both parties seek advice, evaluation and guidance. The boundaries of the role become narrow. The lawyer may provide legal information, explain procedural pathways, and outline the consequences of certain options. However, the lawyer cannot provide dedicated advice to one party, cannot withhold relevant information from the other, and cannot strategically favour one position over another.

In practice, this often leads the lawyer into a hybrid function. Beyond delivering legal information, the lawyer may begin to manage communication, identify underlying interests, structure discussions, and support the construction of a workable and durable agreement. In other words, the lawyer begins to perform tasks that are recognisably mediative. The focus shifts from asserting rights to managing dynamics; from judicial prediction to negotiated sustainability.

Wearing this dual hat is challenging even for practitioners with formal training in mediation. It requires not only technical competence but also role clarity and self-awareness.

The Structural Problem of Neutrality

The most critical issue lies not in the lawyer's personal integrity, but in the structure of the law itself. The assumption that neutrality can be preserved simply by adopting an equidistant stance overlooks a deeper difficulty: the law is not neutral.

In many areas of family law, the legal framework allows room for discretion, interpretation and evaluative judgement. Yet in a significant number of cases, statutory provisions, prevailing judicial interpretations, or consolidated practices tend to align more closely with the claims of one party than the other. Maintenance criteria, asset division approaches, or parenting time presumptions may objectively favour one side.

In such circumstances, even the mere act of informing the parties about the applicable legal framework may affect the perception of neutrality. A lawyer who explains that prevailing case law tends to support a particular financial distribution may believe they are simply delivering objective information. Nevertheless, the party disadvantaged by that information may perceive the intervention as a form of implicit alignment.

Perception matters. Trust in a joint professional is fragile. If one party begins to suspect that the lawyer's clarification benefits the other, even unintentionally, asymmetry may develop. That asymmetry can obstruct open communication and undermine the negotiation process.

This tension is not unique to Italy. Similar complexities arise in systems where agreements may be negotiated with the assistance of a mediator who, if also a lawyer, is authorised to draft the agreement and manage procedural formalities. Comparable difficulties can be observed in jurisdictions permitting divorce without mandatory legal representation, where mediator-lawyers are engaged with the expectation that they will combine facilitation with legal advice.

In each case, the structural tension remains: can one professional simultaneously preserve neutrality and provide authoritative legal guidance?