Information is neutral but advice usually isn’t

Nov 6, 2020

A mediator is expected to be neutral. This is particularly important in divorce and family cases, where there may be a tendency for one participant or the other to try to “get the mediator on my side.”

While I may have the skills to provide reasonable advice, I don’t do this, as any advice will most likely favor one or the other spouse. In that case I would no longer be the neutral in the process.

As a divorce mediator, I am committed to neutrality, as it reinforces the credibility of the mediation process. If either spouse in a divorce mediation does not see me as being neutral and instead feels I am taking the other’s side, the mediation will be undermined, and no one will be satisfied.

At the same time, one of my fundamental goals in mediation is to foster a process of informed decision-making. Information sharing promotes this concept.

Some information comes from clients, in the form of financial disclosure. Since marriage on one level is an economic partnership, it’s essential that both spouses have equal access to financial data. Prior to our first mediation, I provide a list of financial documents to be gathered and shared, so that, together, we can review assets, debts and sources of income for both spouses.

Other information originates from me. In particular, and especially if there are no attorneys involved in a couple’s divorce, I believe that information about the laws that apply to divorce should be available to both spouses. Since mediation promotes the concept of self-determination (the clients decide, not the court), providing legal information may seem contrary. Actually, it is simply a tool that may or may not be important to either or both spouses. They get to decide what to do with this information. It’s also my way of preparing them for a future conversation with an attorney, friend or family member where similar information may be discussed.

This is where the boundary between information and advice is established. If one or both clients are looking for advice on a legal topic about which I’ve provided information, I’ll suggest that s/he consider consulting with an attorney to meet this need. My reasoning is that any advice provided to address the needs of one spouse is inherently non-neutral.

Similarly, when we are discussing financial topics—a process that draws heavily on my background and experience—I can compile financial information, perform analytical work or help both parties create options. However, the clients need to make decisions that are in their own best interests. While I may have the skills to provide reasonable advice, I don’t do this, as any advice will most likely favor one or the other. In that case I would no longer be the neutral in the process. Instead, a referral to a financial planner will sometimes provide the needed support for a good decision.

For many couples, the financial information they are providing and I am compiling, organizing, analyzing and/or explaining, or the legal information I provide is enough of a foundation for each spouse to feel comfortable about engaging in a negotiation that will lead to mutually acceptable, informed decisions. In some cases, a referral to another professional for advice provides the needed support to an otherwise uncertain spouse. The mediation process should always be adaptable to the needs of the clients and afford flexibility and originality, creating better outcomes and futures.