DIVORCE-SUCCESS
Chaos to Calm

What You Should Know About Mediation Before You Begin Your Divorce

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1. Mediation is voluntary: You are not required to reach an agreement on all, or even any, issues. If no agreement is reached, you may file a court case or continue with a court case that has already been filed.

2. The mediator as a neutral: Mediation is a process of alternative dispute resolution. The mediator is a neutral facilitator who will not make decisions but assists you in reaching your own settlement. You agree to enter into mediation in good faith, with the intention of reaching an amicable settlement of your disputes.

3. Respectful communication: Mediation is most effective if you leave fault and blame aside. Each party accepts responsibility for stating his/her wants and needs, yet respects the other’s right to be heard. If the mediator determines that you are not attempting to negotiate in a constructive manner, she may terminate the mediation.

4. Release of information: The mediator may ask for your permission to speak with experts who are knowledgeable about your case, such as: therapists, custody evaluators, teachers, financial consultants, and any other collateral sources appropriate to the situation, outside the mediation session. In some cases the mediator may ask to speak with your children.

5. Full disclosure of information: Full disclosure of all relevant and pertinent information is essential to the mediation process. Mediation can only work if you completely, honestly and respectfully disclose to each other and to the mediator all relevant information and documents that would usually be available through the discovery process in a legal proceeding.

6. Caucusing: There may be times when the mediator feels a “caucus” or separate meeting with you or your spouse would facilitate the process. The caucus is the only time during the mediation process that information could be confidential unless the information is substantive to the mediation process. The mediator will not share the information provided in the caucus if you request that it stay confidential. However, the mediator may terminate the mediation if the sharing of that information is necessary for the mediation to continue.

7. Confidential process: What is discussed in mediation stays confidential and cannot be used in Court. All written communications are also treated as confidential. The mediator cannot be called to testify in Court.

8. Mandatory reporting: The exception to the above paragraph on confidentiality is that the mediator is not required to maintain confidentiality if she/he has reason to believe that a child is need of protection, if either person is in danger of bodily harm or if he/she learns of the intent to commit a felony.

9. Mediation is not legal or tax advice or psychotherapy: The mediator does not offer legal advice or provide legal counsel, even if the mediator is an attorney. It is highly recommended that you obtain legal advice from our respective attorneys. If the mediator is a psychotherapist, the mediation process is not psychotherapy. You may also want to consult a financial professional to identify any tax consequences of an agreement.

10. Fees: Most mediators charge by the hour. Typically, attorney mediators charge higher fees. You will be asked to pay for sessions that are not cancelled 24 hours in advance.

11. Cooperation: Mediation depends on cooperation. This includes a good faith effort to be available for mediation conferences when requested by the other party or mediator.

12. No Restraining Order: Remember that some Restraining Orders allow for mediation and others do not. It is possible to alter a R.O. if necessary and appropriate. Mediation can take place from separate rooms if one or both of you feel uncomfortable or unsafe being in the same rule. In cases of severe domestic violence, mediation is not appropriate.

13. Terminating mediation: Either or both of you may withdraw from mediation at any time. If the mediator determines that it is not possible to resolve the issues through mediation, the process can be terminated once this has been conveyed to us and confirmed in writing.

14. Memorandum of Understanding: When you reach an agreement, the mediator may, if you choose, draft a Memorandum of Understanding that records your agreement. You are both advised to review this with your respective attorneys before the Agreement is placed in final form and signed.

15. Attorney consultation: A good mediator will strongly encourages you to consult with your individual attorney before, during and after the mediation process. This is standard procedure and is not generally viewed as an aggressive or distrustful act

.Sat Tara Kaur Khalsa, M.S., L.P.C., copyright 2007
(303) 530-7080 divorce-success.com

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