Rules of Mediation
The purpose of these rules is to assist you in reaching a settlement of the issues submitted for mediation. The rules and guidelines are necessary to protect the integrity and confidentiality of the mediation process.
Agreement to Begin Mediation. These rules will be a part your signed Agreement to Mediate, which you will be asked to sign before beginning mediation.
Prerequisites for Mediation. If you have some concerns about whether mediation is appropriate for you, or whether you and/or your spouse can fulfill these requirements, please discuss these concerns with the Mediator, either before or during the mediation process.
- Each person can make a decision to enter mediation freely and without coercion.
- Each person enters mediation with informed consent. Informed means that each person has had the opportunity to learn about mediation, its pros and cons, and alternatives to it.
- Each person can provide full disclosure without being afraid or endangered.
- Each person is aware that he or she can withdraw at anytime and feels they can do so without retribution.
- Each person is able to recognize that the other person has rights and needs separate from his or her own.
- Each person recognizes that all mediated outcomes must be agreed upon voluntarily by both participants.
- Neither person is cognitively or emotionally impaired (e.g., severe depression) in any way that affects capacity to mediate.
- Neither person lacks capacity due to drug or alcohol abuse.
Safety. Participants are encouraged to discuss with the Mediator, either in sessions or in private, any concerns related to either your physical or emotional safety and well-being as it relates to the mediation process.
Mediation is Voluntary. Mediation is a process in which you have the opportunity to listen to and talk with each other, share information, consider each other’s perspectives, and make voluntary, informed decisions, with the assistance and support of an impartial mediator.
The mediation process will be conducted to permit full discussion and resolution of the issues. The Mediator will assist you in fully discussing and understanding each issue before agreements are made so that you will arrive at solutions that are fair and equitable for you and for the other participant(s) in mediation.
Although the Mediator recommends that each person educate himself or herself about the legal approach to divorce, the mediator will encourage you to discuss and negotiate a settlement based on your own standards of fairness and your decisions about what is best for you and your family.
The Mediator understands and expects that emotions may run high at points during the mediation process. You are asked, in this Agreement, to agree to do your best to stay with the process and to continue to discuss your needs and concerns until the Mediator fully understands what is going on and why you and/or the other participant are feeling the way you are feeling.
You will have ample amounts of time to be heard. The Mediator asks that you agree to use your best efforts to commit to the process, to express yourself fully and honestly, and not to withdraw physically or emotionally during the process. If at any point you feel you need a break, or want to end the session for the day, because you are having trouble staying with the process, that is perfectly normal and understandable. Please feel free to communicate that need to the Mediator.
You agree to use your best efforts to listen to each other, with the acknowledgment that you may understand the other’s point of view without agreeing with it.
None of the agreements made in mediation are binding until a formal agreement is signed, with proper legal formalities. Even if you agree to something during one meeting, all agreements are tentative until they are final. This gives you the opportunity to consider the ideas carefully, and to obtain separate advice from legal or financial or psychological professionals, if you so choose.
If you think it over, sleep on it, and decide that what was discussed is not workable, that is not considered ‘breaking a promise.’ You must both have time to give care and thought to all terms, before any agreement is finalized.
Full Disclosure. You agree to fully disclose to each other and to the Mediator all information and writings as requested by the Mediator, including financial statements, income tax returns, and all information requested by the other participant if the Mediator finds that disclosure is appropriate to the mediation process and could aid you in reaching a settlement.
At the conclusion of the mediation process, you may find that the other’s attorney will request further verification and disclosure in order to aid the review and implementation of the decisions made in mediation, and you agree to provide information in response to the request of the other. In addition, at the conclusion of the mediation, you agree that you will sign a verified (notarized) statement declaring that you have fully and truthfully disclosed all information concerning assets, liabilities, and income if so requested by the mediator or the other participant.
You should be aware that failure to honestly and fully disclose information relied upon in mediation could invalidate and/or void agreements reached in mediation.
Participation of Children and Others. Children of sufficient age or other people having a direct interest in the mediation may participate in mediation sessions related to their issues if the participants and the Mediator consent.
No Action Without Prior Discussion. Prohibition Against Transfers of Property, Change or Cancellation of Insurance, or any other Action That Changes the Marital Estate. Upon beginning mediation, you agree that you will not engage in any transactions which materially affect or could affect the current status quo of the existing marital estate, including (but not limited to) transactions that affect retirement assets, real estate, cash accounts, or vehicles. You agree that transfers or sale of property without the written agreement of the other participant is prohibited, except in the usual course of meeting ordinary monthly obligations. You agree not to cancel or change health insurance, life insurance or other benefits, or to change beneficiary designations on insurance or retirement assets, without first disclosing and discussing such changes.
Confidentiality of the Mediation Sessions. Laws and court rules say that all communications, documents and work notes made or used in mediation are privileged and must remain confidential. In addition, you agree with each other and with the Mediator to keep the mediation discussions and documents confidential. By signing the Agreement to Mediate, incorporating these rules and guidelines, you agree as follows:
- You will not call the Mediator as a witness in any litigation of any kind, or for any deposition, regarding the mediation process. You will not require the production of the Mediator’s records or documents or any other notes or papers made by the Mediator for any purpose(s) associated with the litigation of any issue(s) dealt with in mediation.
- These exclusions from evidence and exemptions of the Mediator and participants from giving testimony or being called upon to produce documents shall also apply to the use of neutral experts and other professionals called upon by the participants in mediation.
- Mediation conducted by a professional mediator shall come within the purview of his/her professional privilege as established by the Academy of Family Mediators, the Association for Conflict Resolution, the Model Standards of Practice for Family and Divorce Mediators adopted by the ABA in April, 2001, and any other statutory protection enacted either before or after the commencement of mediation by the participants.
- If the Mediator is called or subpoenaed as a witness for any future court proceeding and asked for information about this mediation, you agree that you shall be responsible for fees for the Mediator’s time, at the Mediator’s hourly rate, which shall include any time involved in defending against the subpoena, preparing documents, retrieving documents, answering or appearing as a result of the subpoena, as well as any attorney fees incurred by the Mediator in connection with such requests.
- Notes. During the mediation sessions, the Mediator will takes notes, recording what you are saying and what you have said. The Mediator uses these notes primarily as a device to help her to hear and listen more accurately. She is not drawing conclusions about you or about what you are saying, but is primarily recording your statements.
The purpose of these notes is for the Mediator to accurately remember what you have said, as you are saying it, and also so that she can accurately record any items on which agreement is reached.
Finally, you understand that after signing a full Settlement or Separation Agreement, or upon closing of a file which does not end with a full agreement, the Mediator routinely shreds all notes from mediation sessions, and other records, from your file.
Drafting of Agreement. At the conclusion of the mediation sessions, if appropriate, and if you both want him/her to, the Mediator may draft a detailed Stipulation of Settlement Agreement, or Separation Agreement, setting forth the decisions agreed upon by you in mediation, and background and factual information you relied upon to reach agreement.
If you both request that the Mediator draft the Agreement, then the Mediator shall discuss with you in person, the Ethics requirement of the Disinterested Lawyer test; and you should know that:
1. The advantage of one attorney drafting is that your attorney-mediator is aware of both of your perspectives needs and interests; and
2. The disadvantage of one attorney drafting is that, during the drafting, no one, but you, will be protecting and advocating for your positions and your legal interests; and
3. The legal profession and a court may see the drafting of a separation agreement by one attorney as constituting a possible conflict of interest for the attorney involved, because your legal interests are diverse. For example, if there were a point in the Agreement where I have to choose whether to draft in favor of one participant of the other, then your interests would be diverse; however as a mediator, I try to make those choices explicit as I draft, and mark such items with italicized notes, so as to allow you to make those choices; and
4. While drafting, I can not look out for your individual best interests in this situation; and
5. That my responsibility is limited to drafting an agreement that follows the terms of your oral agreement; and
6. That in drafting the separation agreement as attorney for both of you that I would attempt to draft following the mainstream used by attorneys in Kings County; and
7. That I would not be able to advise you individually of your respective rights, but would only meet with you jointly to review the agreement and make any changes requested by both of you; and
8. That a separation agreement drafted without legal advice from separate attorneys has a higher risk of being overturned in the event that either one of you eventually changes your mind; and
9. That you should each have your own attorney review the agreement; and
10. Before you sign it, that if you wish to have another attorney, or another two attorneys, work with you to draft the agreement, I would then prepare a memorandum of understanding which summarizes the terms agreed-to in mediation, and which, upon your approval, would be forwarded to the other attorney or attorneys.
Legal Representation. The Mediator does not legally represent either of you and is acting only as a mediator in this matter.
Although the Mediator recommends that each of you educate yourself about your legal rights in divorce, the Mediator will encourage both of you to discuss and negotiate a settlement based upon your own standards of fairness and your own decisions about what is best for yourselves and your family. You have the right to decide not to consult with counsel if it is your desire to avoid attorneys, or to conserve time and resources.
If you retain an attorney at the end of the mediation process to review the Agreement, you will better protect the Agreement from legal challenge at a later time. If you retain legal representation at the beginning of the mediation process, you will have a better understanding of your legal rights and responsibilities. Thus, you will less likely be surprised by legal issues or concerns raised by attorneys, after believing that all decisions had been finalized.
Scheduling of Sessions and Starting Times. Your appointment time has been reserved exclusively for you. If you schedule an appointment, no one else can make an appointment for that time. Therefore, if you need to change the scheduled appointment, you are requested to do so at least 24 hours in advance. Failure to do this will result in a charge of one hour’s fee for the cancelled session.
In-session mediation time will be billed beginning at the time that the session is scheduled to begin, unless the delay in start time is attributable to the Mediator.
Hourly Fees and Administrative Charges. In addition to hourly charges for the mediation sessions, you will be charged the hourly rate for the Mediator’s work outside of the mediation sessions, whether for the preparation of the mediated settlement agreement or for discussions with you, your counsel, or with other persons concerning matters related to the mediation with whom you have authorized the mediator to communicate. You will also be charged for unusual word processing or paralegal work. Photocopying above that normally required with a typical mediation case will be charged to you. Charges will be billed to you on an on-going basis with payment due at the next mediation session or within 30 days, whichever occurs first.
Disagreements. Should any disagreements arise between either participant and the Mediator concerning fees or charges, the Mediator may resort to any and all legal remedies available. You shall be responsible for all costs incurred as a result of the Mediator’s attempt to collect amounts past due, including attorney fees, court costs, other collection expenses, and fees for the Mediator’s time spent on collection attempts. Fees for the Mediator’s time will include pulling relevant invoices and information from the file, filling out the referral form, and referring the matter to collections.
Phone Calls and E-mails. The Mediator will bill the regular hourly rate for time spent on telephone calls, (other than calls to schedule a mediation session,) and for time spent reading and answering e-mails. An agreement cannot be reached until all participants have completed the process of understanding the situation and have fully understood and explored options, and come to terms with all elements of the agreement. If it is important for one participant to have a telephone conversation with the Mediator between sessions, this is part of the process necessary toward achieving the agreement. The Mediator will do his/her best to assist the person calling to find a way to share the information with the other participant, and in raising these issues in a joint meeting. The time spent on the telephone or on e-mail with either of you shall be billed at the Mediator’s hourly rate to the person or people who have agreed to pay the fees for Mediation.
Participation of Apprentice Mediators. The Mediator works as a mentor in several professional mediation associations and may, from time-to-time, be working actively to train an apprentice mediator. The Mediator may request your permission to have an apprentice mediator observe one or two mediation sessions. The apprentice mediator will observe all rules of confidentiality regarding the discussions which take place during the session which he or she observes. Such apprentice(s) will have already completed mediation training, and demonstrated to the Mediator a commitment to the family and divorce mediation field, such that he/she will be professionally responsible.