WHAT IS AN INDEPENDENT, THIRD PARTY NEUTRAL?
In the four mediated models described earlier, CD is the only type with an attorney-client relationship and therefore the only one where I can give legal advice. These boundaries are clearly defined and essential to maintain my unbiased neutrality. Let me elaborate:
As a mediator, I do not give legal advice. Instead I give general legal information, such as what is the difference between community and separate property; what about inherited property; how quickly can you get divorced; what do courts look at to determine spousal maintenance and child support; etc.? I won’t advise you how to decide these issues, or what I think would be the best approach for either side.
What’s the difference between “information’” and “advice”?
The American Heritage Dictionary defines “information” as:
“1. Knowledge or facts learned, especially about a certain subject or event...
2. The act of informing or the condition of being informed; communication of knowledge: safety instructions are provided for the information of our passengers.” A tour guide gives you historical information but does not tell you what to do with that information. When a realtor gives you market information about comparable properties, she shares real estate information you could look up elsewhere. It’s doubtful she knows you well enough to advise you where you need to live or the best house for your family. All Washington laws, cases and court rules are published and available on line or in person. Those are examples of readily available “legal information”.
"Advice" is defined as an “opinion about what could or should be done about a situation or problem; counsel.” For synonyms, it states: “advice, counsel, recommendation. These nouns denote an opinion as to a decision or course of action; sound advice for the unemployed; accepted my attorney’s counsel; will follow your recommendation.” Coaches advise you what to do and when. What should be your strategy for how to apply readily available “legal information” you can find online is not so clear. The best way to apply “legal information” is very nuanced, based on counsel’s skill, intelligence, instinct, education and experience. An attorney who gives “legal advice” proposes a strategy how to apply the law to facts.
As a mediator in SC, DM, and the shorter mediation, the parties are not my clients. We have no attorney-client relationship. As a mediator in these types of cases, I am more like a tour guide or realtor, and less like a coach or attorney. I may give you some knowledge, some “legal information”, but I will not give you an opinion about what you should do because it would compromise my integrity, neutrality, and fairness. When you need legal advice, I will remind you please consult your attorney.
In CD, I will give my client legal advice, because that model is created based on a unique attorney-client relationship.