Applying or Waiving the Law in Mediation
Even though mediation is a process in which the parties themselves make an agreement that works best for them and their family, I have yet to meet clients who are not interested in or choose not to be informed as to what the law provides.
As a mediator, I think it is important for clients to know what the law provides and what might happen if a court were to determine the outcome of their divorce because I feel it is impossible for them to waive a right without knowing what that right may be. The only problem is that there is a plethora of cases in which opposing attorneys are fighting over what the law provides, so usually I give my clients the law as a range of possibilities or let them know what might be a likely outcome but stress the uncertainties that are inherent in the court process.
Of course, I do not and cannot give legal advice to either or both of the parties since that is well beyond the role of a mediator. Instead, I provide objective legal information so they can make decisions knowing the impact of the law.
I will then emphasize to them that they are free to explore many other options to reach a resolution that is particularly suited to them. I consider the application of the likely outcome if they were to go to court as but one of the choices before them, and in my experience, clients tend to achieve a result that is similar to that which may occur in court but will have been tweaked to meet their particular needs. Moreover, if a client chooses to waive what would be considered a right under the law, I will explore the reason why to insure that they are doing so with full understanding of his or her right while respecting their right to determine the outcome of their divorce.