Do I Give Up Any Rights by Choosing Mediation?


Authored by: Jordan E. Trager, Esq.

Usually during the course of the mediation process the parties come to an understanding with the mediator as to their wishes regarding their children and their finances. The mediator can provide some general legal information during the mediation process. However, the primary role of the mediator is to facilitate an agreement between the parties, not to give legal advice to either of the participants or to advise them of their legal “rights”. This is true even when the mediator is an attorney. For example, the mediator generally will not answer the question “What do you think I ought to do?”

Once the participants have reached a tentative agreement, each of them is encouraged by the mediator to have a separate attorney review their agreement before signing it, to ensure that his or her legal rights are adequately protected, in accordance with their wishes. The obvious benefit of having a separate attorney review the agreement at the end of the mediation process is that it ensures that the participants are provided legal advice on their rights before they sign the agreement.

If either review attorney has comments about the agreement, he or she may contact the mediator to request changes. However, if either review attorney requests a substantial change to the agreement, then the participants will be referred back to the mediation process where further negotiations can take place before an agreement is finalized. Thus, by having a separate review attorney at the end of the mediation process, the legal rights of the participants, and the sanctity of the agreement, are sufficiently protected.

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