What’s the appropriate role of the law in divorce mediation?  Not all mediators agree.  Some mediators take a very hands-off approach.  This could come from a lack of detailed knowledge about the law.  Or they may have a view that the law is external to the spouses and therefore shouldn’t factor into their decision-making unless they want it to.  At the other end of the spectrum are mediators who place great importance on the law.  They may go so far as to use their knowledge and experience of the law and divorce court to guide the spouses toward what they view as law-appropriate agreements.

We should draw a distinction between legal procedure and substantive law.  It’s widely agreed that mediators should be able to help spouses understand the procedural and paperwork steps involved in divorcing – since you can only get a divorce if you follow a procedure accepted by the court.

Law in Divorce Mediation – Substantive Issues

The role of the law as regards substantive divorce matters (such as co-parenting, support and property division) is where there is less agreement.  Here are some factors having a bearing on the role of the law in divorce mediation:

• Since judges sometimes have to make divorce decisions, a body of statutory law and case law has built up which guides judges when making these rulings.
• However judges make rulings in only about 5% of all California divorces because the rest are settled somehow before going to trial.
• The law grants spouses very wide latitude when it comes to their divorce settlement agreements.
• The only area where the law leans in fairly strongly in order to try to protect children is in child support.  For child support, the guideline calculated amount is presumed in the law to be correct. Nonetheless, lots of couples agree to a non-guideline figure and have this approved by the court.
• A cardinal principle of mediation (at least for most divorce mediators) is party self-determination. In other words, mediation should empower the spouses to make their own decisions and agreements.
• Another important principle is that the process of mediation should foster well-informed and well-considered decision-making by the spouses.
• If the spouses are unable to reach a settlement in mediation, they may well find themselves in the adversarial court process. Here a judge may make decisions about their divorce that are grounded in the law.

Legal Information vs. Legal Advice

An important distinction when it comes to the role of the law in divorce mediation is between legal information and legal advice.  While there are shades of grey, legal information is simply presenting what the law says.  Legal advice is presenting a conclusion and opinion as to how the law relates to the spouses’ factual situation.  Most divorce mediators think it is okay to provide legal information.  Less think it’s okay to provide legal advice in mediation sessions.

When selecting a divorce mediator or talking with your mediator about the mediation process, you may want to consider what you would like the role of the law to be.  After all, the mediator and the process should be working for you.