Real Mediator Questions

Hi Elinor

Something has come up recently in some seminars I've been to. At least twice, someone tried to make the point that it is actually sometimes an advantage to have a mediator who is not certified, because a non-certified mediator can give you his/her direct evaluation of the case, while a certified mediator cannot. Just wondered what your response was.

Thanks, Ms Commercial Mediator
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Dear Ms Mediator,

Someone made that up. Its a marketing tactic that is misleading.

No "mediator" should be giving a direct evaluation of a case. Every mediator can give their opinion on the range that a case is likely to fall into. (Make that range broad). If the parties want a direct evaluation of a case they don't want mediation, they want a process called Neutral Evaluation. (We talk about this on Day 1 of each of our training programs in the Conflict Management Continuum section.) You can provide Neutral Evaluation - and give the parties your direct evaluation of their case - but not as a part of the mediation process. If mediation ends in impasse you can change hats, go into Neutral Evaluator mode, and give them your opinion.

In my opinion it is unwise to mediate, in Florida, without being Certified. You have no judicial immunity if the case is not court ordered. And, you leave yourself open to legal malpractice issues because it will not be difficult to make the connection between being an "un-certified" mediator who is sitting there giving a legal opinion and the practice of law.

Best, Elinor

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Hi Elinor,

I am interested in your opinion on this hypothetical situation. In a family mediation, in separate session, the husband tells you he has hidden money. Is this considered fraud which is a crime and would not then be considered as privileged/confidential? Must a mediator disclose this to the other party? Or, should the mediator simply terminate the mediation?

Thank you, Elinor! Your opinion means a lot! Mr Divorce Mediator
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Mr D,

Hiding money from your wife is not a crime. So this is something we could NOT report to the police (or anyone else). The issue is misrepresentation. If the husband is misrepresenting his financial situation, the mediator cannot perpetuate the misrepresentation. So the mediator would have to either (a) convince the husband to come clean or (b) terminate the mediation. BUT, the mediator could NOT disclose to the wife or anyone else that the husband has hidden funds.

Best, Elinor