Case Watch: For Mediators
following case analysis is part of a regular series we publish to help you
broaden your knowledge of rulings of Georgia’s appellate courts that may
affect your practice. Remember: mediators should not give legal advice
CaseWatch for Mediators: DANGER! Know Your Limits!
Because mediators like to help people, they may be tempted to venture into unfamiliar subject matter at the urging of the parties. What could be the harm? After all, if both parties agree on a course of action, there is no reason not to accommodate them by putting it into their agreement. Or is there? Is there??
Well, let’s learn some lessons from the recent divorce case of Morgan v. Morgan. It is a prime example of “DANGER, WILL ROBINSON!” for mediators.*
Morgan, the pertinent part of the settlement agreement stipulated:
Upon the retirement of Husband from such military service, Wife shall be entitled to receive from his retirement benefits only such portion of such benefits as the Navy requires be paid to her. In the event that such payments to Wife are required by the Navy, Husband agrees to sign any documents required by the Navy to insure that Wife receives any such required amount.
After entry of the divorce decree, the parties learned that the Navy did not “require” any division of Husband’s benefits and in fact had no legal authority to determine the allocation of retirement pay between ex-spouses.
Sounded simple enough. We all have had parties who represented that they were absolutely certain of information that we ourselves did not know for certain, yet who wanted us to act on it nonetheless. They insist that they know what they are talking about, they both agree on the course of action, and they want their mediator to do what they want
Obviously in Morgan, the parties did not know what they were talking about, and this was a half million dollar mistake. The bigger problem, however, was that the mistake could not be corrected by the trial court.
cases, we know that the trial court lacks the authority to modify the
terms of a divorce decree in a contempt action. When the wife filed for
enforcement of the divorce agreement, she learned from the court that:
It is the function of the court to construe the contract as written and not to make a new contract for the parties.
In Morgan, the parties were lucky. They had a chance to redraft their divorce agreement, but only because their case was reversed and remanded to the trial court for further proceedings. This allowed the parties themselves to address their original error, assuming they could cooperate with each other to do so. Not all parties are this fortunate, particularly if there is still lingering animosity from the divorce.
Retirement benefits often constitute the biggest asset of a marriage. What divorcing parties frequently fail to understand is that the retirement plan document that governs the benefit takes precedence over any divorce decree. Any time retirement accounts are up for negotiation, the plan documents need to be read to ascertain how retirement assets should be divided in the event of a divorce. For mediators to do this and advise the parties would constitute the unauthorized practice of law. Even if you want to help, this is beyond your ethical scope of assistance. Don’t do it.
To further complicate matters, you should be aware that some retirement plans do not allow for and cannot be divided by a Qualified Domestic Relations Order. For example, the retirement plans of many universities and some city and county governments do not accept QDROs. Likewise, IRAs are not qualified plans and are not subject to a division by QDRO.
mediator practice when dealing with retirement benefits may be to put a
provision in the memorandum of understanding that the parties will consult
with an attorney as to if and how any retirement benefits will be
distributed. This will prevent any well-intended assistance by the
mediator from becoming a financial disaster that cannot be corrected.
There are ethical limits on a mediator’s ability to assist parties, and
sometimes they are for the parties’ benefit.
*Editor’s historical note: “Danger, Will Robinson!” was a popular pop-culture phrase that originated from the 1960s television series “Lost in Space.” The exclamation was shouted by one of the show’s main characters, a robot charged with guarding the human child Will Robinson. The robot enhanced its verbal warnings by urgently waving its arms. The author regrets that she is unable to demonstrate this behavior in print to emphasize her point.