What is the Difference between Legal Advice and Legal Information? How does that Affect the Role of the Mediator?

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What is the Difference between Legal Advice and Legal Information? How does that Affect the Role of the Mediator?

What is the Difference between Legal Advice and Legal Information? How does that Affect the Mediators’ Role? by Deborah E. KaminetzkyPeople 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

 

Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516
Phone: 516.374.0074

By | 2018-01-05T13:01:26+00:00 July 14th, 2017|Divorce Law, Mediation|Comments Off on What is the Difference between Legal Advice and Legal Information? How does that Affect the Role of the Mediator?

About the Author:

Deborah E. Kaminetzky is the founding member of Kaminetzky Law & Mediation, P.C. located in Cedarhurst and Garden City, New York. Prior to starting the firm Deborah worked at a Long Island firm where she learned the practice of Matrimonial and Family law and Estate Planning. Deborah has also worked at the New York City Department of Consumer Affairs where she was responsible for prosecuting unlicensed home improvement contractors and negotiating settlements for consumers. Prior to practicing law, Ms. Kaminetzky was the president of a commercial property management corporation in the New York Metro area. Ms. Kaminetzky is a member of the American Bar Association (General Practice, Solo and Small firm Division and Law Practice Management Sections), National Association of Divorce Professionals, New York State Council on Divorce Mediation, Family and Divorce Mediation Council of Greater New York, New York State Bar Association (Business Law, Estate, Family Law, ADR and General Practice Sections), Nassau County Bar Association (where she serves as Vice Chair of the General, Solo and Practice Management Committee, and is active in the Community Relations and Education Committee) and The Nassau County Women’s Bar Association. Ms. Kaminetzky was appointed to the Committee on Law Practice Management of the New York State Bar Association in 2015 and has been a frequent speaker and author of articles for their journal. Ms. Kaminetzky serves on the Board of Directors of the Yashar Attorney and Judges Chapter of Hadassah as a their Treasurer, and was their Woman of the Year 2012. Deborah graduated from New York Law School in 1991 and the University of Michigan, Ann Arbor in 1986. Ms. Kaminetzky was admitted to the First Department in 1991 and the United States Supreme Court Bar in February of 2015. Deborah is on the Matrimonial fee dispute arbitration panel for Nassau County. She expanded her alternative dispute resolution practice by completing a Mediation certificate program in December of 2013, an advanced Mediation certificate program in 2015 and most recently a Divorce Mediation certificate in early 2016 from The New York Peace Institute. Ms. Kaminetzky has spoken to various groups on topics including matrimonial law, technology and social media use, and disaster preparedness for business including cybersecurity.