Should a divorce mediator provide legal advice in divorce mediation? Dispensing legal advice is one of the key services attorneys provide to their clients. However, if an attorney acts as a divorce mediator, the attorney is no longer acting as an attorney. Different standards of conduct apply. And many divorce mediators are not attorneys.
The “Standards of Practice for Professional Family Mediators” adopted by the Academy of Professional Family Mediators (APFM) provides the closest we have to a definitive answer: “The mediator shall not provide legal advice to the participants.” These standards however are advisory rather than regulatory in nature.
What do we mean by legal advice? Legal advice is presenting a conclusion as to how the law applies to a factual situation. It often includes an opinion as to what should be done as a result. It’s often couched as “here’s the ruling a judge would make.” The main problem with this is that no one knows for certain exactly what a judge would decide in a given situation. And if a divorce mediator conveys legal advice to spouse(s), this can be quite influential.
Some non-lawyer divorce mediators give legal advice even though this could be considered an unauthorized practice of law. Paralegals and Legal Document Assistants also often give legal advice. But they are not authorized to do so. Some attorneys when acting as a divorce mediator also dispense legal advice – even though this is clearly discouraged in the standards of practice above.
If a spouse in mediation wants some legal advice, it’s appropriate for the spouse to get the advice from a family law attorney – outside of the mediation. Often during the process of divorce mediation it makes sense to consult with outside experts to support well-informed decision-making. Sometimes both spouses would like to get legal advice on a particular question. Then you might invite a family law attorney to provide this advice as part of the mediation process – either in person or in writing.
Information vs. Advice
Legal advice in divorce mediation can be distinguished from legal information. Legal information is simply what the law says. If conveyed accurately, it can broaden the spouses’ understanding of the situation they find themselves in. The standards of practice referred to above encourage supporting the spouses’ decision-making through the provision of relevant legal (and other) information.
Most divorcing spouses would like to receive relevant legal information. What if they don’t? Most (but not all) professional mediators would agree it shouldn’t be given. Some mediators would be concerned that without relevant legal information, the spouses might make uninformed agreements they could later come to regret.
A prudent approach is to ask the spouses. Would they would like the mediator to help them understand the basic law and underlying principles relating to the subject matter (say spousal support) they will be discussing? If so, a good way for the mediator to present this legal information is in a conversation separate from conversation(s) delving into their particular situation. In this way, it’s easier for the mediator to provide the legal information without straying into legal advice.
The considerations above apply to legal advice and legal information regarding the subject matter areas of the spouses’ divorce (such as division of property). Virtually all divorce professionals are in favor of helping a couple understand the different procedural avenues available to them for resolving their divorce and the pros and cons of each.