Ethics in Mediation
Working with a family law mediator is different than working with a family law lawyer.
Your lawyer has the duty to be biased for you, to provide you with legal advice and to argue on your behalf.
On the other hand, a family law mediator has an ethical duty is to be unbiased, to not give legal advice and to help you find a peaceful resolution.
Instead of crafting arguments, like a divorce attorney, a family law mediator will clarify interests, surface solutions and maintain a productive conversation. Out of this, you will create a durable, workable agreement.
The purpose isn’t to win a battle, but rather to start the peace.
And this does not have to take a lot of time. Sometimes when a couple reaches a peaceful space, where they are able to communicate, the conversation moves pretty quickly.
And when you have your agreement, it can still be reviewed by a consulting attorney.
Mediation Confidentiality
There are two levels of confidentiality in mediation.
The first level of confidentiality covers nearly everything that is discussed between the parties in mediation. It is nearly absolute.
Conversations and offers made in mediation can’t be used in court. This rule is part of California’s Evidence Code Sections 1115-1129. The intent is to encourage openness to help people find a peaceful resolution to their conflict.
However, allegations of child abuse, domestic violence or other criminal behavior is not confidential.
The second level of confidentiality covers conversations between the parties and the mediator.
If mediation reaches an impasse the parties are split into separate rooms. And the conversation becomes more open and free flowing. Options are considered and counter offers are taken to the other party.
The mediator confirms what can be shared with the other party. No information is shared that you don't want to have shared.
You may ask, "How do I know you won't share my secrets?" It won't happen for a simple reason.
If I shared secrets the other side would know that confidentiality had been breached and the mediation is dead.
Because mediation is different from what we encounter in the legal system, I've attached the relevant statues and policies so that you can review them and draw your own conclusions.
Model Standards of Conduct For Mediators - American Bar Association