July 23rd, 2010 – Erin Johnston, MSW, LCSW
Mediators do not give legal advice, but do give legal information throughout the mediation process. Providing information allows the parties to make the most informed decisions for their futures as possible, while not impinging onmediator neutrality.
The focus of the mediator is to facilitate communication and resolution among the parties in conflict. The mediator’s role is not one of saying what is best. Through mediation the focus of the resolution process is to minimize conflict and find the best solution for all parties. Mediators are neutral participants in the process.
An attorney’s focus is to find the best solution for a particular client. An attorney will give legal information and advise as to the best outcome for his or her client only. As in any litigated process, the focus of the resolution process is for the attorney’s client to win and achieve the best solution for the particular client. Attorneys, acting as legal consul, are ethically barred from being neutral participants in the process and are charged with advocating solely for a particular client’s interests.
Those participating in mediation should seek their own legal advice from a licensed attorney, to ensure rights are protected. This does not negate the savings and efficiency of mediation, as the attorney would simply review the agreement, not negotiate the agreement. Should an attorney make recommendations contrary to the mediation agreement, the parties and mediator can meet to determine how the mediating parties wish to proceed.