In divorce mediation, the role of the mediator is to meet with both of the parties as a neutral person. The mediator is not the decision-maker—the parties are. The mediator’s role is the help the parties understand each other’s interest, make proposals, and reach an agreement. Mediators may provide legal information, but it is improper for the mediators to tell the parties what their agreement should be. A mediator only acts at the consent of both parties.
What’s the role of a mediator and are attorney’s involved?
A mediator cannot give one advice against the other. Nothing can be filed at court except by the agreement of both parties. The mediator cannot force either party to move forward against their will. The pace of the divorce goes slowly or as quickly as both parties agree it should.
An attorney-mediator can provide legal information to both parties—ideally in the presence of both parties. This usually includes general information about family-law procedures, support, guidelines, community-property laws, and parenting plans. It is common for an attorney-mediator to prepare all of the court documents, including the Marital Settlement Agreement. The parties are encouraged to consult with separate attorneys. An attorney can provide legal advice, suggest proposals to be made in mediation, and review the final Marital Settlement Agreement for recommended revisions and additions.
Arbitration Vs. Mediation
Many people incorrectly use the terms “arbitration” and “mediation” interchangeably. Arbitration is a legal process in which the arbitrator makes binding decisions after the parties or their attorneys argue the case. It is a simplified form of the adversarial court process. While it is an alternative to court, it is not mediation. The courts do not allow arbitration of most divorce issues. Only the judge can make binding decisions if the parties cannot reach an agreement.
Who Represents Who
A mediator does not represent both parties or either party. The parties represent themselves “In Pro Per”, or they are represented by attorneys. The mediator cannot give the parties legal advice—only “legal information.” The parties are encouraged to consult with or retain separate attorneys to obtain legal advice. In mediation, the parties must be able to obtain the information necessary to make their own decisions. The mediator cannot investigate either party’s finances or parenting behavior. If there are doubts, a party can use an attorney for “discovery,” then use mediation to make joint decisions.
Mediation is confidential by law (except Family Court Services’ custody and visitation recommendations). This means that discussions, notes, and proposals made in mediation cannot be disclosed to the court in the event that mediation does not work out (10%-20% of cases). This makes it safe to make generous offers to settle the case—without worrying that a proposal would be used against you later on. You don’t give up any rights by meeting in mediation.
William Eddy is an attorney-mediator who has provided divorce mediation services to over 500 couples in San Diego. He has 12 years’ experience as a therapist, followed by 10 years’ experience as a family law attorney. He teaches Negotiation and Mediation at the University of San Diego School of Law.