The Role of a Mediator

You're chugging through a family law case when the Court and/or your attorney tells you that it is time to go to mediation.

What does that mean?

Well we know that mediation is different than arbitration. So if a mediator is not an arbitrator, what does a mediator actually do? Who are these people?

As a basic definition, a mediator is an unbiased third party who helps facilitate settlement negotiations. That's it.

But what does that mean?

Let's talk about what a mediator is not.

A mediator is not a Judge or Magistrate.

There are Judges and Magistrates that opt to break into mediation after their time on the bench. However, if that individual is acting in a mediator role, they are not to meander from that role. A mediator is not going to make any determinations as to your case. If you show up to mediation with your evidence expecting the mediator to take a side, or issue any Orders or official opinions on your case, you will be disappointed. You are, of course, welcome to bring any evidence you want to mediation. In family law cases, mediation often cannot continue without relevant and recent financial statements. However these are used for demonstrative purposes rather than to sway a mediator one way or another. If you are looking for this kind of experience (which is not often ordered in family law cases), you will want to look for an arbitrator, not a mediator.

Although an attorney can be a mediator, a mediator cannot be a source of legal advice for either party.

Many mediators are or formerly were attorneys. This can be advantageous in many ways. Namely, mediators with a legal background are familiar with case law, statutes, Judges and Magistrates. They can often better predict whether a Court will sign off on an agreement or not; what details to make sure to include in agreements to avoid further litigation; and they can share their experiences with certain issues and how they are dealt with in a Court hearing. But an attorney working as a mediator will not be advising either party. It is always a good idea to have your attorney, if you have one, attend mediation with you and this is why. If you have your attorney at the ready, you can have a source of support for questions that fall in the category of legal advice.

A mediator is not cannot give expert advice on issues regarding tax, real property, valuator, therapist or other professional opinions on matters they are mediating.

Again, a mediator can certainly have a background in one or more of these expert areas. However, in mediation, they are not in that role. Much like attorneys, Judges and Magistrates, they can give their unofficial input that includes their experience with these matters, but if you have a tax question, you will want to consult a CPA. If you need something valued such as a house, a business, Oriental rugs, guns, cars, jewelry, etc., you will want to get an appraiser for that valuation. Similarly, mediators often get into mediation to be helpful to folks and you will each get a time to discuss your positions, which can be full of emotion (understandably). But a mediator is not there to hash out conflicts that arose in the marriage or that are happening now. Though the issues may be relevant, it is a better use of your time and money to focus on the facts rather than using time to name-call or point fingers. For that, you would benefit from a therapist or other mental health professional.

A mediator is cannot be a witness for the matter they mediate.

Everything in mediation is confidential. Everything. Excepting that the mediator is a mandatory reporter so if there are threats of harm to self or others. There is a sound reason for this. Keeping all settlement negotiations confidential allows the parties to bring forth reasonable settlement offers without fear of compromising their position or breaking confidentiality. In other words, if you are in mediation and Wife says that she is willing to waive maintenance, Husband cannot then go into litigation and tell the Court that since Wife was willing to waive maintenance during mediation, she should not be entitled to maintenance. The Court will not allow that. As such, mediators cannot be subpoenaed as witnesses in cases that they mediate for this reason.

A mediator does not represents the best interests of either party.

Similar to the attorney note above, mediators do not represent either party. They are unbiased third parties. If you feel that a mediator is favoring one party over the other, something is wrong. Mediation is a voluntary process, even when Court-ordered so long as you have made reasonable good faith efforts to negotiate. So if you have this feeling, you can feel free to end the mediation session.