The parties participating in mediation often select the mediator. Choosing a qualified mediator is important. The parties should consult local resources regarding whether or not there are special certifications available for family mediators and ensuring that a mediator with the proper qualifications is selected. Once a mediator is selected, each party needs to prepare for mediation. This could include consulting their attorney or just mentally preparing for the issues that need to be worked out. When consulting a client who is participating in mediation, it is important to explain to them any legal issues in the case and to have them understand the consequences involved if the mediation fails. The attorney should also explain to their client what role they will play in mediation, if any. In some mediations, the parties will have their attorneys present. However, in many cases, their attorneys are not present.
Prior to the start of mediation, each party should be aware of the ground rules and what will be required of them during the mediation process. Some mediators have rules where they are not involved at all with the case. Many mediators will have their own rules, but the parties do have some say in the process. The attorney should discuss what documentation the client should bring to the mediation sessions as well as consult with the mediator for what they suggest to come prepared with to the sessions. This might include pay stubs, W2 forms, health insurance forms, day care bills, etc. Having the ground rules for the mediation in place, and in writing, along with proper preparation by both parties prior to the start of mediation will help ensure that the process is a positive one for your client. The attorney should also assist their client in understanding whether or not what is said in mediation is confidential, or what exceptions to confidentiality might apply to avoid things being used in court if the parties fail to mediate all of the issues in their case.
During meditation, there are two types of common negotiation strategies. The first one, “positional negotiation” involves both parties exchanging offers to get the best results for themselves. The second type is called “interest-based negotiation,” which involves the parties describing their interests and looking for solutions that satisfy them both. At the completion of mediation the parties may enter into a written separation agreement containing provisions for the maintenance of either of them, the disposition of any property owned by either of them, and the custody, support and visitation of their children. Terms of the agreement set forth in the decree are enforceable by all remedies available for the enforcement of a judgment, and the court may punish any party who willfully violates its decree to the same extent as is provided by law for contempt of the court in any other suit or proceeding cognizable by the court.
Mediators are guided by standards established and adopted by the American Bar Association. Some important excerpts are as follows2:
STANDARD I. SELF-DETERMINATION
A. A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party makes free and informed choices as to process and outcome. Parties may exercise self-determination at any stage of a mediation, including mediator selection, process design, participation in or withdrawal from the process, and outcomes.
STANDARD II: IMPARTIALITY
- A mediator shall decline a mediation if the mediator cannot conduct it in an impartial manner. Impartiality means freedom from favoritism, bias or prejudice.
- A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.
1. A mediator should not act with partiality or prejudice based on any participant’s personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.
C. If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.
STANDARD IV. COMPETENCE
A. A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.
1. Any person may be selected as a mediator, provided that the parties are satisfied with the mediator’s competence and qualifications. Training, experience in mediation, skills, cultural understandings and other qualities are often necessary for mediator.
STANDARD V. CONFIDENTIALITY
- A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation, unless otherwise agreed to by the parties or required by applicable law.
- If the parties to a mediation agree that the mediator may disclose information obtained during the mediation, the mediator may do so.
- A mediator should not communicate to any non-participant information about how the parties acted in the mediation. A mediator may report, if required, whether parties appeared at a scheduled mediation and whether or not the parties reached a resolution.
- A mediator who meets with any persons in a private session during mediation shall not convey directly or indirectly to any other person, any information that was obtained during that private session without the consent of the disclosing person.
RULE 2.4- LAWYER SERVING AS A THIRD-PARTY NEUTRAL3
(a) A lawyer serves as a third-party neutral when the lawyer assists two or more persons who are not clients of the lawyer to reach a resolution of a dispute or other matter that has arisen between them. Service as a third-party neutral may include service as an arbitrator, a mediator or in such other capacity as will enable the lawyer to assist the parties to resolve the matter.
(b) A lawyer serving as a third-party neutral shall inform unrepresented parties that the lawyer is not representing them. When the lawyer knows or reasonably should know that a party does not understand the lawyer’s role in the matter, the lawyer shall explain the difference between the lawyer’s role as a third-party neutral and a lawyer’s role as one who represents a client.
A minority of jurisdictions, eleven states and the District of Colombia, have adopted the Uniform Mediation Act (“UMA”).4 The UMA protects privileged communications made during mediation from disclosure, admissibility and from being discoverable.5 The majority of states have not adopted these rules. While most states have not adopted the UMA, they have created rules to deal with mediation confidentiality. Whether or not something discussed or produced during mediation is confidential depends on the jurisdiction. For instance, the court in Hauzinger v. Hauzinger found that since New York has not adopted the UMA that refusal of the lower court to quash a subpoena for the mediator to testify was not an abuse of discretion despite the fact that information during the mediation session might be divulged.6
Some jurisdictions have taken voluntary mediation prior to litigation a step further by establishing local statutes that allow courts or mandate courts to order mitigation between the parties, especially in cases involving child custody and visitation issues.7 For instance, jurisdictions in Arizona, California, Delaware, Florida, Kentucky, Maine, Nevada, North Carolina, Oregon, Utah, and Wisconsin have established mandated statutes for the courts to order mediation.8 Other jurisdictions like Louisiana give the courts authority to order mitigation, but do not mandate it.9 When the court orders the parties to participate in mitigation, they are required to do so unless there are extraordinary circumstances as provided by state statute or jurisdictional rule.10
If you are interested in mediation, Stange Law Firm, PC can help. We have attorneys who can represent you through mediation the mediation and help devise a strategy for your case. We also have mediators who can mediate your case.
1 American Bar Association, (Viewed Feb. 13, 2015) http://www.americanbar.org/content/dam/aba/images/dispute_resolution/Mediation_Guide_Family.pdf
2 MODEL STANDARDS OF CONDUCT FOR MEDIATORS (viewed March 2, 2015). http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/model_standards_co nduct_april2007.authcheckdam.pdf (Standards are not shown in full, consult the Model Standards of Conduct for Mediators on the ABA’s website for the full standards.)
3 MODEL RULES OF PROFESSIONAL CONDUCT RULE 2.4
4 1 Mediation: Law, Policy and Practice § 8:15
5 Uniform Laws Commission, Mediation Act, (viewed March 4, 2015). http://www.uniformlaws.org/Act.aspx?title=Mediation%20Act
6 Hauzinger v. Hauzinger, 892 N.E.2d 849 (2008).
7 Christy L. Hendricks, The Trend Toward Mandatory Mediation in Custody and Visitation Disputes of Minor Children: An Overview, 32 U. Louisville J. Fam. L. 491, 492-93 (1994).
8 Id. at 497.
Keywords: Divorce, Family Law, Mediation