Couples that are in search of a divorce mediator typically have two choices: lawyers or therapists. While couples are likely to base their decision on the mediator's personality, as well as their rates and methodologies, choosing someone with a background in therapy may be of great importance based on the issues within their relationship. A therapist mediator may be a good choice if one party wants the divorce, while the other party does not. In fact, it's not uncommon for one spouse to announce his or her intention to file for divorce in front of the therapist mediator, who will then be able to address the other party's emotional turmoil in a compassionate, yet professional manner. Even if couples are on the same page, it may be good to work with someone who understands the psychological complexities of divorce, and how it impacts the settlement process.
The problem is that a mediator is supposed to be a neutral third party representative. He or she facilitates the discussion, and offers alternate arrangements or clarifications as needed. However, he or she cannot give legal advice to either party, nor advocate any decision that he or she feels is in one party's best interest. Adhering to this rule becomes challenging when a mediator has been addressing one party's emotional issues prior to and during the mediation process. Depending on what has been discussed, this could be seen as a conflict of interest, which is strongly discouraged by the American Bar Association Code of Ethics.
Responsible mediators are generally able to check themselves and disclose the comprised relationship to both parties, who should at that point, consult their attorneys as to whether or not to continue the mediation. Spouses should also discuss any of their own concerns and suspicions with their attorneys, who may advise them to find another mediator, or try other methods such as arbitration and collaborative divorce.
Regardless of your mediator's background, the one thing you can be sure of is that a mediation is not legally binding. You are allowed to back out of the mediation process at any time, and you will not be bound to any of the terms that were discussed during the meetings. You can also have your agreement reviewed by your attorney prior to signing, which is highly recommended. This is particularly important when your mediator does not have a legal background, since there may be complex legal and financial implications that they are not aware of.
In addition to providing legal advice, your attorney's job is to act as your personal advocate to ensure that you are treated fairly on issues such as custody, alimony, and property division. No matter which divorce method you choose, it is essential to work with an experienced family law or certified matrimonial law attorney, depending on the complexity of your divorce. For more information on the divorce mediation process in New Jersey, please speak with the attorneys of Villani & DeLuca, P.C.