Mediation Issues - Divorce: Can a mediator be a witness or talk to the Judge?

  Written by: Linda F. Spiegel, Esq.

Each state has its own rules with regard to mediation and those rules, whether court rules and/or statutes, must be checked for answers to specific issues. Generally, however, mediation is a process in which the mediator, a neutral, facilitates communication between the parties, in order to assist them in reaching a negotiated settlement of their divorce. One of the cornerstones of the mediation process is that it is confidential. The parties participate knowing that what they say will not be divulged to anyone else and thus enables the parties to truthfully discuss their issues.

Divorce mediation is usually conducted with both the Husband and Wife together in the room with the Mediator. Sometimes it is necessary for the Mediator to speak with each party individually. Anything that is discussed in private with one party, cannot be

 revealed to the other party without the first party’s permission.

At the successful conclusion of the divorce mediation the Mediator will prepare a Memorandum of Understanding (hereinafter “MOU”) which will set forth succinctly the settlement to which the parties have agreed and which the parties will provide to their individual attorneys. The parties will have agreed to what extent the MOU is a confidential document. Clearly, it must be given to counsel, as the attorney for either Husband or Wife drafts the final Agreement and the final Agreement is reviewed by the attorney for the other party.

If the Wife and Husband execute the Agreement drawn and reviewed by their respective attorneys, the divorce will proceed through the courts without the need for a trial and the Agreement will be incorporated into the parties Judgment of Divorce. However, if there are glitches along the way, and the matter goes to trial or hearing, the confidentiality of the mediation process prevents Mediators from being subpoenaed as witnesses and also from speaking with the Judge or any court personnel.

In addition to the court rules and state statutes, confidentiality is also protected by the mediation agreement executed by the Husband, Wife and Mediator. It is a general practice for the Wife and Husband to sign an agreement with the Mediator prior to the commencement of the divorce mediation. Usually that agreement will address the confidentiality of the mediation and may provide that any party to the agreement who attempts to subpoena and compel the mediator to testify will be responsible for all the Mediator’s time, costs and fees, legal and otherwise, to fight the subpoena.