Divorce Mediation: The Third Party Issue | Charleston Divorce Attorney
The Third Party Issue
In my blog post Divorce & Mediation: What’s the Best Option for You? I discussed the reasons many people choose mediation over litigation when initiating a divorce. Finding a good Charleston divorce attorney and participating in mediation is a less costly, less time intensive way to get through a divorce. It often lessens the damage done to families and empowers spouses to dictate their own future, instead of letting a judge decide how their lives will go forward.
If you have decided to move forward with mediation, it is common to want to bring a family member or friend with you for moral support or for their advice during the proceedings. Although it may seem like a good idea to have someone with you to hold your hand, it’s not a wise decision.
Confidentiality in Jeopardy
Divorce mediation is confidential – nothing discussed during mediation can be used at trial if your case ends up moving to litigation (remember, although we find approximately 90% of cases are resolved through mediation that means approximately 10% are not). The mediator cannot be called to testify for either spouse and the judge ruling over the case is not able to contact the mediator with questions.
Although the mediator can not be compelled to testify in your case, the person you bring with you to mediation, called the “third party,” could be subpoenaed by your spouse’s divorce attorney to testify during the trial, even involuntarily. For example, if you bring your friend with you to mediation and admit you had an affair, your friend could be compelled to testify at the trial that you admitted to having an affair.
Guardian ad Litem
A Guardian ad Litem (GAL) is unique type of guardian in a relationship that has been created by a court order only for the duration of a legal action. The GAL is not allowed to act as the mediator between you and your spouse. The GAL can and should inform the mediator of his or her position in the case, but the GAL should not be present during confidential mediations. If the GAL were to learn information relevant to your child(ren), he or she is required by statute to disclose the information to the other side and the court. For example, if your GAL is present during the mediation, and you tell the mediator you lost your job and your significant other has moved in to help with bills, the GAL must disclose this information to your spouse, and the court, even if he or she only learned about it at mediation.