“How can I know if my legal rights are being protected during divorce mediation?”
Quite simply — hire a divorce attorney to advise you! If you are currently in divorce mediation, your mediator should have explained to you that he or she cannot ethically give legal advice, even if that mediator also happens to be an attorney. As a neutral, the mediator cannot give advice to one party that may be contrary to the interests of the other. As a result, mediators never give legal advice and aren’t in a position to protect your rights.
It is wise to hire an advising divorce lawyer while you are in mediation. You are not looking for an attorney to represent you at court or in the negotiations. You just need an independent legal ear to discuss your case with you. Tell the lawyer that you chose mediation in order to resolve the issues in your divorce amicably. You are seeking advice, not representation. You want to pay by the hour at the time of your consultation, and you do not want to pay a retainer. Your mediator will likely have a list of mediation-friendly divorce attorneys to whom he can refer you.
Remember, your lawyer’s job is to provide expert legal advice, not to tell you what to do. He or she should give you information about California divorce law and explain the possible consequences of your decisions. Your attorney will make a realistic assessment of your legal rights and how he/she thinks the issues would be determined in court. Your attorney will also make suggestions that might improve your marital settlement agreement.
After you meet with your divorce lawyer, evaluate the information and advice you were given and decide how much of it is useful to you, under all of the circumstances of your own, unique situation. Remember that it is you — not your attorney or your mediator — who must live with the legal consequences of the decisions you will make regarding your divorce in the years to come. Divorce mediation is a safe and wonderful way to end your marriage amicably. Just make sure that you have a lawyer to assist you in making decisions that are informed.
Shawn Weber is a family-law attorney and divorce mediator with Brave, Weber & Mack in San Diego.