Mediation: Balancing Self-Determination and the Law

In this excellent blog posting, Susan Ingram writes about how it is easier for a couple to reach a “fair” agreement in a mediation setting – because THEY are the ones making the decisions. If they were litigating their divorce in court, a judge or their attorneys would be making decisions for them.

Like Susan I feel very strongly that while a couple should determine for themselves what is fair and equitable, their decisions also need to be “informed” decisions. What do we mean by that? An informed decision is one in which the couple has as much information as possible to help them decide upon the best course of action for themselves and their children.

First, I believe I have a responsibility to tell clients generally (in my role as a neutral) what their rights and responsibilities are under the law, and also to share with them decisions in pertinent cases. If it is appropriate, I will also tell them what other clients have done in similar circumstances. Additionally, I strongly recommend that they have their own review attorneys comment on the draft agreement I’ve prepared, so that each has gotten input from his or her own counsel.

My second, and equally important task, is to make sure my clients have all the information they need. I advise them during the first session that they may need to consult with experts or professionals in areas in which the issues are complex.