How to Get Legal Advice From Your Mediator (psst...trick title!)
We told you it was a trick title: The simple answer is “you can’t get legal advice from a mediator.” Even if a mediator is trained or licensed as an attorney, a mediator can only provide “legal information,” never “legal advice.”
So what’s the difference between “legal information” and “legal advice”? Legal information includes facts about what the statutes literally say and how the legally processes mechanically work. What mediators can’t do is provide “advice” which is more about how the laws might apply to you and your specific situation. Legal advice is something that only an attorney who is working specifically for one of you can provide.
If during a mediation you need legal advice about what might be a recommended course to take or what might happen with your case if you went to court, you would work with a lawyer on a one-on-one, attorney-client relationship. In fact, one Virginia Code Section (Va. Code § 8.01-576.12) indicates that mediated agreements might be set aside under certain circumstances if the mediator does not tell you that (i) the mediator can’t provide legal advice, (ii) a mediated agreement may affect your legal rights, (iii) each party is encouraged to consult with independent legal counsel at any time, and (iv) each party should have a draft agreement reviewed by counsel.
If you seek the help of a lawyer while you’re mediating, it is critical to establish up front with that lawyer that you are trying to resolve the conflict through mediation. There are many lawyers who, knowing that you’re in mediation and want to stay there, will support the mediation process and provide advice and make recommendations within that context. They can help you make good mediation choices. Unfortunately, there are other lawyers who, try as they might, routinely see inquiries as from clients as sounding like “how can I (the client) do better with you (the attorney) representing me than I can do in mediation?”
Be sure to guide the lawyer about your goals. Explain what the “gives” and “takes” have been in the mediation. Describe why you might have given up something that might not make sense from the lawyer’s perspective in order for you to achieve a gain somewhere else. For example, if your attorney were to look at the assets that have been divided and wonders why you kept a rocking chair worth only $50 while your soon-to-be-ex gave that up for a the china cabinet worth $200, you would want to explain that the rocking chair, to you, is much more valuable than the china cabinet because of the memories, not to mention that all the china was broken one unpleasant night before the mediation started.
Remember that you are the client and the one in charge of your decisions and destiny. Use a lawyer’s advice to be sure you’ve made well-balanced decisions, not to derail the mediation!
Daniel R. Burk, President