There are a couple types of mediation. Here they are.
One can mediate in a style that is closer to evaluation. That is, I as a mediator would say ” I’ve got concerns about how the judge might disagree with, and change that agreement. ” I can input into the discussion solutions others have found to the issue clients are dealing with. This input is always something like, “Have you considered this?” Sometimes the parties have considered my possibility, and rejected it for some reason. Other times it is a welcome suggestion. Often, the couples have never considered my suggestion before, because they have limited experience with their issue, while usually I have dealt with it many times before.
Sometimes they want me to comment but don’t believe me when I do, or simply insist that their agreement will work. Sometimes that means I say the judge won’t allow it, the attorney writing up the stipulation say that also, and they must bring it before the judge before they are convinced the judge won’t allow it. That is unfortunate, but it happens. Sometimes they want to make things simpler than the courts will allow, and again, they can be embarrassed in court by the outcome.
There are also those who prefer a mediator who is completely focused on process. That is, no comments, no suggestions, just refocusing when folks get off track or when the process slips into bickering. In this type of mediation, I will remain silent even though I believe the judge will be likely to allow an agreement. For example, if a couple has $10 million in marital property and they agree to give to one person only, the judge will not allow that, unless the person getting the sum has been disabled or there is some other extenuating circumstance. If they don’t want me to comment, then they will need to take it up with the judge.
Most often, however, clients welcome any help or suggestion I can give them, though the result of the comment is at times “unwelcome,” because it means their firm opinion of what should work simply doesn’t work.