Can a Divorce Mediator Give Legal Advice?
No! Yes!
“Can a divorce mediator give legal advice” is a trick question because “legal advice” has two entirely different meanings.
This often leads to confusion because people use the exact same words “legal advice” to refer to entirely different things.
The Meaning of “Legal Advice” for Lawyers and the Legal System: Legal Strategy
For divorce lawyers who litigate, “legal advice” is a technical term with a very narrow, special meaning. It refers only to the advice given by a licensed lawyer to a client with whom they have established an attorney-client relationship. It involves an attorney using expert legal knowledge or education to give strategic advice to a client that the client can use to his/her advantage, e.g., to avoid conviction on a criminal charge or to prevail in a contested divorce case.
This narrow, legal definition of “legal advice” is similar to the commonsense notion of legal strategy. When you hire an attorney to represent you, you pay them a lot of money and then they formulate and share with you a legal strategy, thereby giving you legal advice.
From this perspective, divorce mediators do not give legal advice. The ways mediators work, by definition, does not put them into a position where they even could give legal advice.
Mediators are working with a couple as a neutral third party. They do not enter into an attorney-client relationship with one spouse and offer them legal strategies to gain a strategic advantage over the other spouse. This is what lawyers representing clients do; it is not what mediators working for couples do.
The Meaning of “Legal Advice” for Non-Lawyers: Legal Information
In everyday usage, non-lawyers (who make up 99.99% of the population!) use the term “legal advice” to mean “legal information.”
Divorce mediators can and should give legal information to their clients! Such information might include:
- how to calculate child support,
- what county a divorce should be filed in,
- whether the state is a “community property” state,
- at what age children are considered emancipated,
- whether alimony is presumptive in a state,
- what issues need to be addressed in a separation agreement (e.g. parenting plan and division of assets),
- how long it takes to get divorced, etc.
Without this information, a couple do not know what issues need to be understood, discussed, and addressed in order to make the decisions required for a legal divorce. From this perspective, divorce mediation lawyers–while remaining neutral–should give abundant “legal information.”
If your divorce attorney mediator declines to give you “legal information,” claiming that they cannot give you “legal advice,” you should find a new mediator.