The role of the law in divorce mediation

A mediator has a responsibility to tell the parties the law. First and foremost, getting a divorce is a legal proceeding. Whether it is considered a legal problem with personal implications or a personal problem with legal implications, the law that applies to property and support issues is at least relevant, if not dispositive.

Mediators who are not members of the State Bar are either withholding important information from their clients, or they are practicing law without a license.

A mediator's professional obligation to ensure that the parties are informed with respect to their legal rights and duties derives from several considerations.

The parties typically want to know their legal rights and duties. It is rare that the parties would instruct the mediator not to provide them with legal information, or reject a mediator's offer to provide them with legal information. While the parties may decide to resolve one or more issues based on their feelings or notions of fairness or other personal considerations, they are entitled to know their legal rights and duties before they make those decisions. Otherwise, they have no way of knowing what they are getting and what they are giving up in exchange.

The legal information and guidance a mediator provides is unbiased. If the parties attempt to get that legal information and guidance from two separate lawyers, they will often get different answers to the same questions. Examples include the appropriate amount of spousal support, the value of a professional practice or business, and the contours of a parenting plan. As a general rule, if there is a subjective component to any issue, lawyers looking at it from the point of view of their respective clients will disagree. The process is less likely to become adversarial if the parties have gotten legal information and guidance that emanates from a neutral source.

Mediation clients may consult attorneys before, during or after the mediation process. They are most likely to consult attorneys after they have negotiated a settlement and have a draft agreement in hand. For some parties, this is an integral part of the process. They want the peace of mind that comes from having their agreement reviewed by an attorney who is looking at things from their point of view. Other mediation clients are concerned that the attorneys who review the agreement may undermine the mediated settlement. Other mediation clients may be disinclined to incur additional expense. Regardless of these uncertainties, a mediator should attempt to ensure that the parties' settlement will pass muster with independent counsel.

This is relatively easy to do when the settlement tracks California law. For example, if the parties agree to divide their community property equally, the property awarded to each party is listed, and the agreement recites that the division is equal (or at least equitable), the involvement of independent counsel is unlikely to undermine either party's confidence in the property division. This is especially true if the agreement recites that the parties had the opportunity to verify the values of all assets, and that the court retains jurisdiction over any asset in which the parties may have a community interest that is not listed.

After 50 years of California's no-fault divorce law, the vast majority of issues have been definitively resolved by statute or an appellate case. California law is the yardstick attorneys and judges use to measure the fairness of a mediated settlement. The debate among mediators is whether the law should be elevated to the first position unless the parties agree otherwise, or held in reserve as the default position if the parties fail to agree otherwise.

There is a judicial expectation that the mediator will take some responsibility for the fairness of the result, not just ensure the integrity of the process. In Marriage of Kieturakis, 138 Cal. App. 4th 56 (2006), the appellate court quoted from an alternative dispute resolution practice guide with approval and concluded that because mediators generally work to balance the power between the parties, mediation tended to produce agreements that were voluntary instead of coerced: "Thus, while mediation is no guarantee against the exercise of undue influence, it should help to minimize unfairness in the process by which a marital settlement agreement is reached."

The tension between mediator's responsibility for the process and a mediator's responsibility for the outcome has been inherent in mediation practice for decades. In "Mediating Divorce" (1989), John Haynes wrote that, on the one hand, mediators must leave the parties' "total responsibility for the outcome." At the same time, he stated that a divorce mediation is successful when "the outcome is essentially equitable and designed to meet the joint needs of the parties and the individual needs of each participant." If a mediation is deemed unsuccessful unless the outcome is essentially equitable, the mediator must necessarily have some responsibility for that outcome. The parties' notions of fairness -- and the mediator's -- are subjective; the only objective standard is California law.

To the extent that the parties resolve one or more issues on the basis of their own notions of fairness or personal considerations that are important to them, the rationale for that settlement should be set forth on the face of their judgment. This serves multiple purposes:

First, it reminds the parties of why they made the deal. Memory lapses are not uncommon; in extreme cases, there may be buyer's remorse. With the passage of time, many parties remember what they gave up, and forget what they received in exchange. The judgment should recite generally that the parties were informed that the settlement they negotiated differs in material respects from the settlement that might have been negotiated by lawyers representing the parties or the result of a contested trial in superior court. In appropriate instances, a specific recitation should be also considered. An acknowledgment that a party is giving up a valuable legal right in exchange for adequate consideration heads off potential regrets, recriminations and claims of professional negligence.

Second, it explains the deal to third parties who were not involved in the negotiations. Third parties may have no idea what trade-offs were involved, or what extralegal considerations may have motivated the parties. To the extent the parties negotiate a deal that does not mimic California law, the lawyers the parties consult will understand the reciprocal compromises and concessions that were made by the parties. The consideration for the deal the parties negotiated will be apparent from the face of the judgment.

Third, it protects the professionals. When a mediator brokers a deal that strays too far from California law, there is risk that he or she will be blamed -- by one of the parties, a lawyer or a judge. Consulting attorneys may also be blamed for falling down on the job. If the parties have made the deal with full knowledge of their legal rights and duties, those risks are minimized. Unless the rationale for the settlement is set forth on the face of the judgment, however, no explanation is admissible in any civil proceeding. The principle of mediation confidentiality precludes consideration of anything written or said in connection with the mediation process.