What is a mediator?

A question from a third party who had difficulty posting to the site:

My husband and I are going through a divorce. A month and a half ago, all communication between us broke down. Our son (30 years) offered to, and started relaying all messages between us so that issues could be addressed, such as- Who is going to pay the medical insurance premium bill, I am going to apply for a separate auto insurance, is each person willing to go to a mediator, etc.

He has not had any conversations with all present at the same time.

My husband expressed that he sees our son as a mediator and therefore he cannot testify in court.

Would the court see it the same way? Should our son stop relaying messages?

A mediator is a formal relationship - using a family member as a conduit to exchange information does not actually meet the definition of a mediator. In fact, you’ve alluded to your son asking both of you whether or not you would be willing to engage with a mediator. Basically, it takes two to agree on a mediator, and your husband’s solo opinion does not create a mediator - client relationship.

That said, I would encourage you to STOP using your son, although not for legal reasons. While I know he’s an adult and I’m sure he has the best of intentions to help both of his parents, it’s an unfair role for him to play. Your child, even though he’s an adult, will always be your child. That means that your forever role is to protect him, especially from his parents’ conflict.

While occasionally adult children will need to testify in a divorce case, having your son talk about what each of you said is not helpful from either a legal or a parental perspective. It’s hard to imagine a more uncomfortable situation for parents to put their child in, having them get up and publicly testify against one or both of their parents.

My husband and I went to a mediator to reduce cost of attorney for both of us. We agree on mostly everything but I was surprised that the mediator prepared the paperwork as my husband being the petitioner and not me. Is there any disadvantage of being the respondent and not the petitioner? I read that The spouse that files for divorce often controls how fast the proceedings move. … The spouse who initiates the divorce may ask that the other party pay for half or more of the fees associated with the filing. This may not be fair, but it is often part of the process.
So should I ask the mediator to change that? Thank you!

In a “typical” divorce, in a way, the Petitioner does control how fast the proceedings move, because that person decides when to file and when to serve - it’s a timing issue. By “typical” divorce, I mean one that is handled through the court system. In a mediated setting, often times the Petition and Response are filed simultaneously, or there is an agreement that the Respondent’s default is going to be taken. In other words, in mediation, there should be no surprise filing of the Petition, nor should the Petitioner get to unilaterally decide when the Petition gets filed.

Overall, California is a no fault state, so there is no legal advantage to being the Petitioner or the Respondent. They are simply titles. Both the Petitioner and Respondent may ask for attorney fees - it is not a right limited to the Petitioner.

Ultimately, it comes down to your comfort level and that of your spouse’s comfort level. When I mediate, I ask which party wants to be the Petitioner and which one wants to be the Respondent. Every couple is different - some have strong opinions, others have no opinion and will literally flip a coin to decide, and others discuss and agree on who will be the Petitioner.