Clients often choose mediation as their preferred method for resolution, for several reasons, but they often don’t know the answer to this question – What is the role of a Mediator? Others understand the role but they are so desperate for an outcome that they feel that their Mediator is ‘all knowing’ and client’s try to force them into an outcome – to actually make the decisions. So let’s chat for a bit about the role of a Mediator and what you can, and shouldn’t, expect from your Mediator.
What A Mediator Does
Mediator’s primary role, at least for me, is to remain neutral. I often describe myself an a ‘translator’, giving clients guidance as to what needs to be considered for their Separation Agreement. I prepare Parenting Plans (if needed) and the necessary (legal) Financial Disclosure documents. These documents are required so we can ascertain who will keep what, how the couples assets and debts will be divided, as well as who owes who an Equalization Payment as well as what amount that might be. I don’t give legal advice. I can give legal information, but not advice. Often, I can mention, in broad strokes, how family law may look at a certain situation but I always tell clients to get legal advice, if they aren’t sure about a right or an obligation that they are negotiating in our mediation sessions. Also, everyone’s situation is different so “broad stroke” guidelines may not dictate your resolution options. Perhaps seeing your lawyer for an hour or so before the mediation can help to set some realistic expectations during your mediated negotiations?
Some mediators are also lawyers, by profession. They, too, can give you legal information but they cannot give you legal advice. To do so would be compromising their neutrality. Legal advice that advantages one spouse would, clearly, disadvantage the other and then the negotiations would break down as the spouse who believes they are treated unfairly would cease to trust their Mediator.
What a Mediator Does Not Do
In mediation, the Mediator does not make decisions. The process is self-determined. As a Mediator, the biggest decision I have, in a mediation, is what tools or resources I have at hand, to use, should I need them, depending on where I think the negotiations might go. The clients make their own decisions. Some people like taking ownership of how they chose to manage their separation. Sometimes, they even agree to make decisions that deviate from family law with regard to their rights and obligations. This is why getting Independent Legal Advice, or ILA in divorce professional lingo, is so important.
So, are you and your spouse good potential mediation clients? Stay tuned for our next blog posting!