People often ask: how do you reconcile the role of the mediator and the role of the attorney when you are doing mediation? When doing a mediation, the mediators’ role is to help the people decide for themselves what course of action they want to take. As a mediator who is also an attorney, I of course have a very good idea as to what would pass muster in the agreement so that it would be likely signed by the Judge.
As an example, when discussing custody of children, if the parties have some idea of what they would like to do, I may be able to offer additional ideas, and eventually they will make a decision as to what will work best for them. So even though I may know the law and may have a very good idea of how the case would be decided by a Judge, I don’t give either of them legal advice.
I do, however, provide legal information which will help the people mediating make their self-determined decisions. I will provide, for instance, a copy of the Child Support Standards Act to help them decide how to structure child support after the execution of the agreement. I would not advise either of the parties whether or not to take immediate action. When we are discussing the basis for their agreement or memorandum of understanding, we are speaking about what will happen in the future, not what they are planning on doing today.
If one of the couple asks “should I move out?”, that is where the distinction between providing legal advice or legal information becomes apparent. When someone is asking should I take an action right now, I would advise them to consult their own attorney. I do not want to cause them to feel comfortable taking an action that may ultimately change the scope of the mediation. For instance, if they decided to move out and then the mediation fails and each side hires a lawyer, the party that moved out may find that they have a different legal situation than if they had stayed in the house. As a mediator, I believe the mediation should take place in a neutral situation with the status quo in place until an agreement has been reached.
Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516