WHAT IS FAMILY LAW MEDIATION?
Mediation is the process where parties to any type of litigation come together in an effort to negotiate a fair and equitable settlement of a dispute without having the court decide their dispute for them. In the family law context, mediation give the parties full control over their destiny without surrendering important decisions to the Court, which decisions affect their welfare and/or the welfare of their children. Mediation has proven to save time and money for both parties.
Family law mediation involves the parties hiring a family law mediator, who is usually an experienced family law attorney, to answer the legal questions and to assist the parties in resolving all issues surrounding their separation and divorce. The mediator will act as a neutral facilitator to help both parties reach their own settlement. The mediator will not make decisions about “right” or “wrong” or tell either of you what you should do. The mediator will not offer legal advice or provide legal counsel to either party. The mediator will guide the parties through the complex world of family law by offering a legal analysis of issues as they present, and give his opinion of what the court would likely do if your matter was heard before a judicial officer. Either party is free to consult an attorney at any time during mediation to understand better your own legal interests, rights, and obligations. Once there is an agreement in mediation, the mediator will formalize the parties agreement in legal documents once they reach a full settlement.
The fees that the mediator will charge will be based upon his/her hourly rate and may or may not include a retainer (deposit) prior to the commencement of the proceedings.
All communications during the mediation proceedings will be held to be confidential and privileged such that nothing said during the proceeding can be used in court against the other party. In the event either party wishes to terminate mediation, then any party can withdraw from mediation at any time.
Mediation is not psychotherapy or counseling, and it does not replace such services.
It must be agreed by both parties that the success of mediation depends on complete and honest disclosure of relevant information and documents to each other and to the mediator. This includes providing to each other and the mediator with all information and documents that usually would be available through the discovery process in a legal proceeding. If either party fails to make such full disclosure, a court might rule later that the agreement resulting from mediation is not binding.
Some of the guidelines that must be observed during mediation are:
a. Leave fault and blame aside. The focus of mediation is on the future, not the past.
Accusations only hinder the process and are not relevant to the issues to be discussed in mediation.
b. Accept responsibility for yourself. State what you want and need. Include your intent, reasons, and feelings. Don’t try to speak for your spouse. This helps facilitate the process.
c. Communications with the mediator about issues under negotiation must be in the presence of both of you. You may call the mediator only for clarification of your next appointment time or of information needed for the next appointment, not for discussion of substantive issues.
d. There may be times when the mediator will call for a “caucus.” In a caucus, the mediator I will meet with each of you separately to clarify issues. The caucus is the only time during the mediation process that information can be confidential between you and the mediator only; otherwise all information developed through mediation will be shared between all three of us. If you share information with the mediator in caucus, the mediator won’t report it to the other spouse without your permission. Even in caucus, however, information that is substantive to the divorce must be shared with the other spouse if the mediation is to continue.
e. You are encouraged to view everything in your agreement as “written in sand” until you have resolved all the issues between the two of you. Divorce is complicated. It will be easier for both of you to negotiate with confidence if you know you haven’t agreed to be bound to anything until you agree to everything.
f. Please feel free to dress comfortably. Mediation is hard work.
During the mediation process, the mediator will prepare successive drafts of various computer spreadsheets and a Draft Settlement Agreement or Proposed Judgment and, in most cases whenever changes have been made, distribute copies to both of you at the end of each mediation session. At the conclusion of the mediation process, you will be provided a copy of the Draft Settlement Agreement or Proposed Judgment to both of you. Each party will be free to review the Draft Settlement Agreement or Proposed Judgment with his or her attorney or other consultant before the agreement is placed in final form and signed.
