Five Typical Problems Encountered by the Divorce Mediator Handling Your Matter.
Client’s Misunderstanding of the Ground Rules of Divorce Mediation:
The mediator is not your “marriage counselor”, “therapist”, “friend”, “mouth piece”, “advocate” and/or “lawyer”. While the mediator might use various skills that are utilized by therapists, counselors and attorneys to elicit information from the participants, it would be a violation of the mediator’s established neutrality to intentionally take an affirmative role that might imply otherwise.
Mediators Do Not Give Legal Advice:
The mediator is not to be expected to offer you “legal advice” (especially if the mediator is not a licensed attorney). While it may be proper to inform the parties as to what the state of the law might be regarding a particular issue that is raised or should be raised during the mediation; it is improper for the mediator to advocate for any particular solution. (i.e: to show the parties the formulae utilized by the court to determine child and/or spousal support is okay; to tell the parties this is what should be done would be overstepping the mediator’s role, especially if the mediator is aware that the court permits deviation from the standard formulae by agreement of the parties or otherwise.)
Mediators Use of Alternative Solutions:
Suggesting alternative solutions to the parties for consideration is the role of the mediator, so long as the parties understand that the mediator is not setting forth the only path to be followed. You should always keep in mind that “anything goes, so long as it is legal”, when reaching a mutual solution to putting an end to the marriage.
Parties’ Lack of Conviction as it Pertains to a Final Solution:
Many individuals who are mediating (usually the spouse who did not initiate the divorce/mediation process), lack the commitment and confidence to move forward with the mediation process. Lack of commitment is often due to that person’s attempt to avoid the inevitable and “fear of the unknown”. It is the role of the mediator to assist you in becoming “self-aware”, by discussing your future expectations and how the mediated solutions might apply to you.
Many mediator’s believe that “review counsel” are problematic, in that they are “hired” by an individual party to “upset” all of the hard work the parties and the mediator put into reaching a comprehensive “Memorandum of Understanding”. This is misplaced “pride” on the part of the mediator. Hiring “review counsel”, or an attorney to protect your interests, is the right of all participants in divorce mediation and can be done at any time. They should be thought of as a tool to be utilized in honing the final “Memorandum of Understanding”, so that the attorney selected to draft the final “Settlement Agreement” need put little thought into converting the parties understanding into a legal agreement to settle the issues of the marriage. In many instances, “review counsel” discover issues that were not addressed in mediation and point out those issues that need to be revisited prior to the settlement documents being produced.
If you are in need of a qualified “mediator” you can contact Glenn P. Milgraum, Esq. at “Morningstar Mediation” by calling 718-748-6625 or by e-mail at: MorningstarMediation@aol.com.
If you are seeking to hire independent counsel, to protect your interests in New York or New Jersey, feel free to contact Glenn P. Milgraum, Esq. by calling 973-812-8660 or by email at: Disputelaw@aol.com. You should also feel free to visit www.GlennMilgraum.com or link with us on www.linkedin.com/in/Disputelaw to review any upcoming posts.
* Nothing herein should be construed as legal advice. You should always consult and/or retain a lawyer regarding any legal matter.