Mediation is a fantastic process that allows parties to craft a resolution that is appropriate and unique to the specific facts of their case and their family. It allows for creativity and out of the box thinking, and often the resulting agreement may be far outside the narrow parameters that the law confines a court to. Even the most factually challenging matters and those with parties with strong personalities can be resolved in mediation. That being said, there are many different mediation myths and misconceptions that are simply not true. This is why it is crucial to seek information about how the mediation process works. Without a full disclosure of information, mediation is bound to fail or result in a one-sided resolution.
Here Are 8 Common Mediation Myths
- You don’t need a lawyer
- The mediator represents me/both of us.
- The mediator will provide me legal advice.
- The mediator can file a divorce complaint for us.
- In mediation you don’t need to exchange any financial information.
- Mediation will work even if my soon-to-be ex is uncooperative.
- The mediator will tell us how the matter should be resolved.
- If the mediation is unsuccessful, we can tell the judge how unreasonable the other party was.
Myth 1: You Don’t Need a Lawyer
Whether it is chess, checkers, tic-tac-toe, or tiddlywinks, before you begin playing a game it is critical to understand the rules. The rules of divorce are controlled by statutes and case law as applied to the facts of the case. Mediation is unique in that parties are free to make their own decisions, which to an outsider may be good or bad, financially favorable or unfavorable. Having knowledge of the rules is essential to reach an ultimate resolution, not because we are bound to follow the law, but because without it there is no way to make an informed decision. Only a matrimonial practitioner can provide a client this information. Neither the Internet, a neighbor, or a friend is a substitute for information from a reputable source.
Myth #2: The Mediator Represents Me/Both of Us
This point should be made clearly by the mediator in the initial meeting and stated in the retainer agreement, which should be signed by all parties. The job of the mediator is to assist the parties in coming to a resolution of those issues that are in dispute. It is not to suggest to one side or the other that an agreement is favorable or unfavorable.
Myth #3: The Mediator Will Provide Me Legal Advice
The short answer is no, they cannot provide you with legal advice. Some mediators will comment on what are considered established legal principles, such as the presumption that parties will share joint legal custody of children. However, the mediator does not represent either party and cannot render legal advice.
Myth #4: The mediator can file a divorce complaint for us
Unfortunately, no, they cannot. Even though the filing of a divorce complaint based on irreconcilable differences is a very simple process, a mediator cannot act as an advocate in any way and filing a divorce is considered representing one side.
Myth #5: In Mediation You Don’t Need to Exchange Any Financial Information
Just as you would not jump into a pool without first determining how deep the water is, you cannot successfully mediate the financial issues in a divorce without first knowing what the incomes, expenses, assets and liabilities are. Knowledge of these facts is an essential element of any agreement.
Myth #6: Mediation Will Work Even If My Soon to Be Ex Is Uncooperative
Mediation, in its classic sense, is a voluntary process. For it to be successful, all sides must be open-minded, willing to explore options that they might be resistant to, and be flexible. If one or both parties have dug their heels in and believe the only resolution is one that incorporates 100% of their wish list, mediation is bound to fail.
Myth #7: The Mediator Will Tell Us How the Matter Should Be Resolved
A mediator is a facilitator and not a judge or an arbitrator. Some mediators will suggest to the parties how they believe an issue would be decided if presented to a judge. This is problematic in two regards. First, not every family situation is the same and more often than not, most resolutions involve trade-offs between various issues, which makes focusing on one issue to the exclusion of all others myopic. Second, family court is a chancery court or a court of equity and therefore judges have a great deal of discretion to do what they believe is fair under the facts. This makes it difficult to predict what a judge would do. However, a practical mediator will offer suggestions if the parties have reached an impasse on an issue.
Myth #8: If the Mediation Is Unsuccessful We Can Tell the Judge How Unreasonable the Other Party Was
The mediation process is confidential. Courts are not allowed to hear what took place in any negotiations, and mediation is a negotiation. For example, New Jersey has an Evidence Rule, 408, which generally prohibits the introduction of “evidence of statements or conduct by parties in settlement negotiations, with or without a mediator present . . . .” Regardless of the position advocated by one side, the substance of that cannot be disclosed to the court absent certain circumstances.
David Carton is a Certified Matrimonial Law Attorney and has practiced Family Law since 1995, regularly appearing before Family Court Judges throughout New Jersey. He represents clients in all aspects of Family Law. He has authored numerous articles, has been quoted in national publications and lectured for the New Jersey Institute for Continuing Legal Education on family law issues.