One of the most frequent questions I am asked when helping clients through their divorce is why I can’t provide legal advice as their mediator. It’s a fantastic question because after all, I am a licensed attorney in the state of California and I know the answer to their legal question, so what’s the big deal?
Well, the problem with giving legal advice as a divorce mediator stems from the primary responsibility of the mediator to serve as a neutral. One of the most important parts of the whole mediation process is for the mediator to remain an unbiased third party throughout the mediation. Staying objective and not taking sides allows both parties to feel comfortable sharing their thoughts and perspectives with their mediator, which is critical to the negotiation stage and, ultimately, to reaching an agreement. So both spouses must continue to view their mediator as an unbiased third party throughout the process in order to have a successful mediation. The problem with providing legal advice is that it carries the possibility of threatening the mediator’s neutrality in the eyes of one spouse.
For example, let’s say a divorcing couple hires me to assist them in resolving their differences on dividing their marital home. They bought the house together, but the husband paid for the down payment on the house using separate property funds. In a joint session, where both parties are sitting together, the wife says to me, “ Our home is community property so it will be divided 50/50.” The husband says nothing.
Here’s where the difficulty arises. The wife is correct in thinking that their home is community property because in California, property acquired during the marriage and before the date of legal separation is considered community property. However, under Family Code Section 2640, the husband’s separate property contribution to the down payment on the house is reimbursable. So now as the mediator, and an attorney, I am faced with a dilemma: do I raise the right of reimbursement or do I say nothing? You can imagine that if I tell the couple about Section 2640, the wife may think I was taking her husband’s side. Conversely, if I say nothing, wouldn’t I be implicitly aligning myself with the wife by protecting her best interest?
As your divorce mediator, I am here to help you both in identifying what assets need to be discussed, making sure you both understand your legal rights with respect to those assets, and then assisting you both in conducting an orderly negotiation process in order to ensure that you reach a resolution that you are both satisfied with. While an attorney’s duty is to represent their client’s best interest, my duty as a mediator is to both parties because you’re both my clients. As a result, in mediation, you can rest assured that you will receive fair and equal treatment. It is for this reason that as a divorce mediator, I will not provide legal advice and will always encourage my clients to consult with attorneys so they have the legal knowledge necessary in order to engage in an informed negotiation session and reach a settlement agreement that is in their mutual best interest. Contact me to learn how divorce mediation can be used to help you reach a mutually satisfying agreement outside of court.