- BASIC MEDIATION SKILLS
- Understanding Conflict
Conflict, or more specifically, interpersonal conflict, is a fact of life. It often emerges when people are stressed. It is said that people are the most stressed during major life events, including death, marriage, imprisonment, and divorce. Understanding conflict during the divorce process is crucial to a successful family law mediation because it will help the mediator understand each person’s feelings, actions, desires to take a position and it will guide the mediator to work through those issues and assist the participants in working towards an amicable, workable agreement.
- Conflict Definitions and Alternatives
Conflict is defined as being different, opposed, or contradictory: to fail to be in agreement or accord. Conflict itself has several definitions but occurs whenever there is a degree of incompatibility, variance, disagreement, strife and absence of peace. Traditional definitions include, “a struggle over values or claims to status, power, and scarce resources, in which the aims of the conflicting parties are not only to gain the desired values, but also to neutralize, injure, or eliminate their rivals.” However this definition implies conflict always involves elimination of rivals which is at odds with current approaches of dispute resolution. Hocker and Wilmot define conflict as “an expressed struggle between at least two interdependent parties who perceive incompatible goals, scarce resources and interference from others in achieving goals”
There has been a is a shift from the prevailing view of how problems or conflict are solved, particularly in the legal system. Previously a hierarchical approach was prevalent, where people in power made the decisions and the majority at the bottom followed them. This hierarchical approach was and is often still today accomplished in the Court system. However, now, as an alternative, people and institutions are moving towards a more collaborative approach in resolving conflict. In the justice system, this is reflected in how Courts have begun making alternative dispute resolution, particularly mediation, arbitration, early neutral evaluation, mini trial, and summary jury trial, a must in family law cases.
- Causes of Conflict
Causes of conflict are implied in the definitions of what the conflict is. Mayer describes conflict more broadly and recognizes that it occurs along three dimensions. These are cognitive, emotional, and behavioral. Cognitive occurs when a party thinks that their beliefs about or understanding of their own needs, interests, wants, or values is incompatible with someone else. The emotional dimension consists of fear, sadness, bitterness, anger, or helplessness resulting from the disagreement. The third dimension, behavioral, describes actions or feelings which are expressed in an attempt to meet the individual’s needs, but in some way, that interferes with others ability to meet their own needs.
Understanding dimensions or components of conflict also assists in understanding the interests of the mediation parties. These interests which are often veiled, or hidden, control the power around the table. Examples of these components are personal, business and legal. The personal component involves the psychological and emotional needs of the party, personalities and biases. Business includes economic interests, preserving heritage while legal interest involves the rights and responsibilities of the parties. A party could become fixed on a position because they have measured their success based on a right they have at law or a responsibility to do or not do something that the other party might have. These components of conflict thus shape the tempo of discussion by providing the objective criteria that the parties come with to the mediation and the BATNA. The BATNA, the “best alternative to a negotiated agreement,” is an assessment of what you will get if the negotiation fails.
These Causes of conflict are multifactorial (defined as involving or dependent upon a number of factors) and are classified in different ways, some of which are summarized in the table below. Causes are also interconnected in that one could lead to another, and this is important for the Mediator to be especially aware of to be able to succeed to get the parties to a stage where they work together to create value.
Causes and Elements of Conflict
|External Structural Framework|
|Values or beliefs|
It is also important as a family law mediator to know the ten (10) common causes of conflict in a marriage to understand the possible feelings and underlying issues of the participants. In no particular order, the ten (10) common causes of conflict in marriage are as follows:
- Money – The conflict of money generally surrounds issues of control, power, and trust. The questions you want to be conscious of in your mind and the situations you want to look for as a potential barrier in the room are: Is one person the bread-winner in the family, creating a power struggle and control over the other? Does one person feel powerless to the other because he or she earns no income to support him or herself without relying on the other for financial support? Does one person receive a budget from the other throughout the marriage that feels demeaning and controlling? Does one person in the relationship squander money, excessively gamble, spend money outside the budget, frequently purchase lavish, (what is perceived as) unnecessary items? These issues commonly arise in mediation sessions and it is the mediator’s job to recognize and maneuver through these issues to bring everyone back on the same page of working together to reach an amicable, workable agreement.
- Children – One of the biggest challenges of family law mediation is working through and deciding upon a workable parenting plan for the parties’ children. Parenting styles may differ dramatically from one parent to the other. Often one parent is considered the “fun” parent, while the other parent is the disciplinarian and the parent responsible for scheduling doctor visits, parent-teacher conferences, cooking dinner, and taking the kids to all of the different weekly activities. Additionally, one parent may be less cautious then the other parent, which makes the other parent nervous about his or her time alone with the children. One parent may be better at ensuring homework is complete each night and that school lunches are prepared for the children the following day. One parent might take a more holistic approach to medicine than the other parent, which may cause arguments about medical treatment. And one of the biggest issues that often arises in marriage is the type and frequency of discipline of children (i.e. time out, spanking, raising voices, going to bed early, taking away toys, removing a door from the bedroom, taking away cell phones). The list goes on and on about how different parenting styles can cause conflict in a marriage and in turn make it difficult to work through these issues during mediation.
- Sexual Intercourse – Married couples argue with each other about many sex-related issues including frequency or sex outside of their marriage. Often when sexual intercourse slows down or stops in a marriage, one partner may feel like infidelity has occurred or is occurring and this perception can have a major impact on emotions and the ability to move through issues is mediation. Additionally, some couples cannot function properly sexually, further stressing the marriage. You may have couples that are open to this discussion and others that find it embarrassing and are difficult to open up. Whichever situation may arise, look for these types of underlying issues as a potential roadblock in mediation and ways that you can maneuver through to a resolution.
- Work – The amount of time someone spends at work versus home or too much travel are often major sources of strife between couples. Usually the person waiting at home for the other, is lonely and feeling unappreciated. Arguments may also arise about the husband or wife, being unemployed whether by choice or an inability to obtain work. Another issue you may see will be a feeling from one that the other may obtain a better paying job to help the relationship financially, but chooses not to for one reason or another. All of the work type complaints can cause major conflict in a home and bleed into the mediation session.
- In-Laws – The topic of in-laws may be one of the most sensitive topics because it is about family. If in-laws do not show love and respect toward their child’s partner, severe conflict often arises in the marriage because said partner may feel unappreciated, isolated, or as if he or she is being pushed out of the relationship. Too if the partner and in-laws do not get along a major problem occurs in the couple’s relationship when the in-law’s child feels stuck in the middle of the strife and wants it to end to calm the storm, although not always possible. These issues arise often in family law mediations and it may be difficult to discuss as one tends to defend family, even unreasonably.
- Time Commitments – Overbooking oneself with outside commitments can happen subtly over time until the significant other feels left out or lonely. This can quickly lead to stress and conflict in the marriage.
- Exes – With the rising desire to join social media, a new major source of conflict is the partner reuniting with old friends and maybe even old flames. If this happens, feelings of jealousy, anger, and maybe even misunderstanding may arise causing major conflict in the relationship.
- Misunderstanding – This cause is often born from unclear communication. He thinks she’s meaning A, while she meant Z. Sometimes it is an honest mistake, but confusion and unclarity breed many an argument. This is the same as the communication problem identified in the chart above.
- Unrealistic Expectations – Actions speak much louder (and perhaps truer). The patience threshold of some spouses seem to be so low that the only level of acceptance and approval would be perfection, which we all know is impossible. With this being said, you will find this to be a big topic in family law mediation as one of the reasons the marriage is not working and you may need to work through these issues before you can get to the agreement zone.
- Stern Talk – Lastly, a major source of conflict in a marriage may be stern talk, which is identified as sarcasm, manipulative behavior, throwing a cheap shot, lack of respect, and no kindness toward the other.
- Components of Conflict
Mediation disputants likely arrive to the point of mediation because of some sort of conflict. It is crucial that the mediator understand that these conflicts are occurring at different levels; inner personal and intra personal. Understanding conflict is about self-awareness and identifying risk factors vis a vis the other parties to the mediation. There is always a human emotional dimension to a mediation and environmental and economic. These are usually described as substantive or relationship interests or goals. They are not always obvious but crucially affect the process and outcome. Further while there is need for the parties to understand each other, they do not have to like each other or agree. Understanding conflict is about ensuring that the mediator and the parties gain an enlightenment of their self-interests. This involves knowing what the externalities are affecting the conflict, what the options for all parties are, even if mediation fails, and the degree of control each party has on the outcome. While the focus is not uncovering the truth, parties to mediation benefit more when they understand the conflict. For the mediator, understanding conflict assists to realize your mediation style, identify the parties conflict styles to be able to assist them to move from the adversarial approach to a collaborative approach. It assists in deciding whether parties would benefit from caucuses and if there is need to be more facilitative or evaluative. Understanding conflict also helps you assist the parties to unpack and analyze the causes of the conflict, their motivations for a particular outcome, understand the other parties reasoning, and eventually come to a mutually acceptable solution. This is called focusing on the interests and not the positions. Positions are what one party says they want, while interests define the problem, and explain why they want that particular outcome. Bargaining over conflicting positions is limiting. The solution is reduced to either outcome A or B. While reconciling interests, exploring “why” opens up the possibility of several solutions. Behind different positions could be both conflicting and compatible interests but this is only brought to the fore when all the parties. The downside about bargaining based on positions rather than interests are that it is inefficient and time consuming, increasing the likelihood of parties being deceitful just to hold on to their position and save face. This in turn kills relationships and becomes a battle of showing strongest will power. Parties become more self-centered, which is counter intuitive in a negotiation.
- Responses to Conflict
Getting out of conflict is usually a multi-step process. After avoidance, according to Folberg et al , there are five basic steps that are recognized as responses to conflict. Most people will try to ignore that conflict exists and hope that it will go away without having to address this. However, when this does not work these stages follow:
- Denial – Typically the first stage of resolution is denial. There is a deep -seated desire not to be the one at fault, not to be the one who must change. In this stage, there is little commitment to address the conflict or the other parties’ point of view. Characterized by smoothing over the differences, and down playing their own interest.
- Acceptance – Parties start to realize that there is a possibility that they could be part of the problem. At times during this stage even when they themselves have not actively done anything to cause the conflict they begin to accept that they can be part of the solution.
- Compromise – Acceptance is followed by considering what they may be willing to do to solve the problem. This could be sacrifice or conflict. Figuring out ‘what do I need, what can I let go of.’ This is a stage of self-introspection, concessions from both sides. Both parties share losses and gains.
- Collaboration – This is at times referred to as the ZOPA- Zone of Possible Agreement. This is like a bargaining range, and there is general exploration of everyone’s interests and values. An agreement is possible and there are many options on the table.
- Agreement – A resolution is found which satisfies both parties’ interests, often in a way better than expected. Parties usually benefit from the conflict because they are less likely to find themselves in the same situation again. There is renewal and healing from the conflict.
- Styles of Mediation
- Mediation Defined
Mediation is a voluntary, non-binding process where a neutral third party assists two or more parties to resolve, manage, or prevent a conflict with their consent. This is done by helping them develop mutually acceptable agreements. Put differently, it is a facilitated negotiation. Mediation has also been defined as, a “…problem-solving conversation facilitated by a balanced and impartial third person, known as the mediator. The role of the mediator is to help participants identify issues that are important to each of them, communicate their ideas, explore options, reduce misunderstandings, clarify priorities, explore areas of compromise, negotiate differences, and if possible, come to mutually acceptable agreements.”
Since mediation is a voluntary process, the mediator has no authority to impose a decision, and nothing can be decided unless both parties agree to it. This makes it very important for the parties themselves to understand the conflict with the goal of getting to a zone where they can possibly negotiate fairly, get the best outcome, own the outcome, and reduce tension by separating the people from the problem.
The success of mediation depends on all the parties particularly the mediator’s ability to create the right environment in the face of a dispute or conflict. It is imperative in mediation for the parties to sufficiently improve their relationship to the extent that they can move towards cooperation. This is called the Zone of possible agreement, as mentioned above. In the context of family law, even though the conflict can be intense, mediation focuses on finding acceptable or workable solutions for all involved which leads to greater satisfaction, less time and money spent, and comprehensive and customized agreements, which are more likely to be followed and have better overall outcomes for children and families.
Ideally both parties tell their side of the story, and jointly identify the problem, brainstorm solutions, and then come to some sort of agreement. While it has always been understood that the most prevalent form of dispute resolution is litigation, in family law, a vast majority of cases will resolve or settle without going to trial. Increasingly settlement is negotiated using an independent third party, a mediator, making it a misnomer to call mediation a form of ‘alternative’ dispute resolution.
Further, in family law, traditional adversarial processes do not always produce the best long-term outcomes for contested custody and parenting time disputes. At the conclusion of a divorce or paternity case, many parents often find themselves back in court years or even months later for a modification. Divorced couples often find themselves back in court on a Motion for Contempt, Motion to Enforce, Motion for Sums Due and Owing, Motion for Sale of the Marital Residence, etc. This has led court sanctioned mediation to be a part of the divorce, custody, visitation and parenting dispute processes. Under this backdrop, Family Law Mediation Programs across States have been successful in minimizing family conflict through shared decision making.
In Missouri, Revised Statutes of Missouri (RSMo) § 487.100 offers mediation, counseling, and home studies as a recommendation – In any family court case the judge or commissioner may, on the judge’s or commissioner’s own motion or, at the request of a party, order or recommend mediation, counseling or a home study. The costs of such mediation, counseling or home study may be assessed against any party at any time and may be taxed as court costs paid by the party against whom costs are taxed or may be paid from the family services and justice fund established pursuant to § 487.170. The amount assessed for such mediation, counseling, or home study shall be such amount as the court determines to be reasonable under the circumstances. The party’s ability to pay shall be a consideration when such costs are assessed. ** Note: check to see whether your local judicial circuit requires training, notices to litigants about the availability of mediation, or any programs established under Missouri Supreme Court Rule 88.
The benefits of mediation highlighted above can be summarized as follows:
- Less expensive and faster than a litigation;
- Creative and customized resolution of the issues;
- Ownership of and increased chances of compliance with agreements;
- Process empowers and validates parties to the extent that they generally feel that their concerns were heard;
- Parties have control over the timing of the process and the outcome;
- Relationships are likely to be preserved unlike in litigation;
- Allows parties to control the content of the written agreement; and, among other thing,
- Balances the power between parties.
- Role of Mediator
Mediators apply a variety of techniques to facilitate problem solving and have different roles depending on the situation and dispute. An effective mediator should ensure that they created an environment where all parties feel they are able to talk and trust that the process will be fair and solve the problem. It’s important that the correct parties are around the table, and the mediator has the role to convene them. They must also make sure the mediation runs smoothly, everyone knows the process and what the mediation will cover. They have the added role to be the educator who explains not only the mediation process, but the procedures and other alternatives to the mediation. They must have to actively listen, probe and rephrase and reframe what parties say to deescalate the conversation and endure effective communication.
A mediator should:
- Convene and explain the process;
- Assure parties that their conversations are confidential;
- Remain impartial and nonjudgmental ( neutral);
- Recognize the legitimacy of each parties’ perceptions of the dispute;
- Answer questions, ask questions and probe;
- Demonstrate interest in the parties and the dispute;
- Encourage participation and balance power;
- Information management – accurate note taking and drawing up agreements;
- Give reality check when necessary, so parties manage expectations;
- Act as referee and cheerleader throughout the process; and, among other things,
- Coach the parties in negotiation, and model acceptable behavior to prevent escalation of the dispute.
Anyone who has ever been involved in a dispute between friends or family members, has undoubtedly acted as a mediator. Although, unlike among friend or within family, mediators involved in court processes, do not make decisions and have no stake in the outcome. Mediation can range from informal to formal, depending upon the nature of the conflict, the mediator, his or her style, his or her role in the conflict, and the setting. Examples of informal mediators may be couples’ counselors or religious leaders. Formal mediators are those we are discussing, which are often appointed by the family law court or sought out by a divorcing couple.
Mediators often become a part of a conflict in that they undoubtedly change the dynamic. “According to Mayer, mediators change the dynamic of the conflict in four ways. First, mediators bring a different structure to the conflict. People will present their cases differently in front of a third party and mediators usually set a structure for communication, giving each party time to talk. Second, mediators bring their commitment, vision and humanity to the interaction. Mediators have faith in mediation as a form of conflict resolution and their optimism that an agreement can be made affects the process. Third, mediators bring sets of skills. Since mediators deal with conflict daily, they learn skills such as reframing and analysis to identify issues and options. This often has a comforting effect on the parties involved. Fourth, mediators bring sets of values and ethics. This helps set a foundation that hopefully brings trust, respect and comfort to the parties and the process (193).”
“Each mediator is different, just as every human is different. Some prefer to talk a great deal during a mediation, while others prefer to talk very little. Another variation is the use of caucuses. A caucus is a meeting with the mediator and one party involved in the conflict, separate from the joint mediation among all parties. During this time, one party may disclose information to the mediator that he or she does not feel comfortable disclosing in front of the other party or parties. Some styles do not use caucusing, while others use it every time…”
Different Types of Mediators – Each mediator has a natural orientation about how they conduct mediation, and there is no right or wrong orientation. Some are more evaluative or facilitative as a result of their professional training. Most mediators change styles during the mediation in response to the dynamics of the mediation and negotiation styles of the parties or in order to give clients reality checks. However, mediators should always be aware that they cannot actively prescribe to the parties what they ought to or ought not to do.
- Evaluative Mediators
Evaluative Mediation is exactly how it sounds. Generally, an evaluative mediator makes an evaluation about something, typically how a court would handle a particular issue or points out the weaknesses in a case. An evaluative mediator will also move the parties in a particular direction on appropriate settlement options/values based upon law, local “cultural” practices and related standards, (often including the mediators own demonstrated and party acknowledged substantive “expertise” and other relevant standards). Note, that many participants in mediation will ask the mediator, “what is your experience with this issue?”, hoping for some type of guidance in connection with the law when an impasse occurs. Evaluative mediators are more likely to make recommendations, suggestions, and express opinions. Instead of assessing the underlying issues, positions, and interests, the evaluative mediator is more likely to focus on the legal merits of the arguments and make fairness determinations.
“Evaluative mediators meet most often in separate meetings with the parties and their attorneys, practicing “shuttle diplomacy”. They help the parties and attorneys evaluate their legal position and the costs vs. the benefits of pursuing a legal resolution rather than settling in mediation.” The evaluative mediator structures the process, and directly influences the outcome of mediation. In Pennsylvania Rule of Professional Conduct 2.4 – Lawyer Serving as Third Party Neutral in particular RPC2.4 (b) and Comment . Evaluative Mediators’ often default position is to keep parties separated during much of the process [Caucus] to exchange settlement positions, offers, reality testing, explore potential interests beyond the obvious position-based conflicts.
“Supporters of evaluative mediation say that clients want an answer if they can’t reach agreement, and they want to know that their answer is fair. They point to ever-increasing numbers of clients for evaluative mediation to show that the market supports this type of mediation more than others. Detractors of evaluative mediation say that its popularity is due to the myopia of attorneys who choose evaluative mediation because they are familiar with the process. They believe that the clients would not choose evaluative mediation if given enough information to make a choice. They also worry that the evaluative mediator may not be correct in his or her evaluation of the case.”
Evaluative Mediator Case Study #1
“Carl entered into mediation with Ted because Carl bought two computers from Ted nine months ago. Ted promised to drop off a warranty for the computers within two days after the purchase was made. The warranty was to cover parts and service for the computers for two years. Carl said that Ted never dropped off the warranty and that both computers were not even functional now. After many attempts to contact Ted, Carl filed a small claims lawsuit against Ted for $2000. The judge turned the case over to mediation.
When the mediation began, the mediator gave a very brief overview of mediation saying that the mediator would work with the two parties in an attempt to resolve the conflict among the three of them and if they could not reach an agreement that the case would go back to court. He did not discuss any restrictions for the conversation except that by law he would have to report any child or spouse abuse, should it be disclosed during the mediation. The mediator then invited Carl to tell his story. The two disputants spoke mainly to one another, although at times they did address the mediator. When it came time for Ted to tell his story, he said that Carl had his cell phone number and he had never received any messages from Carl. He apologized for not dropping off the warranty. He claimed he was just busy.
Within the first five minutes of the mediation, the mediator stopped the disputants because they were repeating themselves. He asked some clarifying questions about dates and then asked each person what type of resolution they thought would be fair. Carl wanted two new computers, with a new warranty or $2000. Ted said that he would not do that, but that he would repair the computers, replacing most of the main parts at his cost, and would provide a new warranty for the next two years. Carl felt that was fair, so the mediator wrote out an agreement, each party reviewed it and they all signed it. The mediator reminded both parties that if Ted did not fulfill his part of the agreement within three weeks that the case would go back to court. There was very little talking on the part of the mediator, except to clarify facts or bring the parties back to focus on the dispute and how to resolve it. The entire mediation lasted about 45 minutes. *”
Evaluative Mediator Case Study #2
“Mary filed a small claims suit against Mel for $1500. Mary had paid for Mel’s speeding ticket, his rent and other miscellaneous things for two months because Mel was low on money and had promised to pay her back. The judge turned the case over to mediation.
Immediately, Mary told the mediator that she had to leave in 30 to 45 minutes because she was leaving the country and she did not realize that it would take so long for the judge to get to her lawsuit. The mediator told Mary that it would be difficult for them to go through mediation in such a rush, but Mary insisted. The mediator asked Mary to tell her story very quickly, so Mary simply stated that she had paid for some things of Mel’s and she wanted to be reimbursed. Mel said he knew that he owed her money but that he had not paid her because Mary’s parents were harassing him and he was sick of it. The mediator gave some examples of past cases that ended in resolution and how they went about doing that.
Five minutes after beginning, the mediator held a caucus. First, she met with Mary and asked her what resolution she would be happy with. Mary said she wanted to be paid back in full and that he could pay her anytime within the next two months, even though she would be out of the country for the next six months. Then the mediator met with Mel, very quickly, and he said that he could pay her back at a minimum of $300 a month until she was paid back the full $1500. He only requested that she and her family stop harassing him.
After caucusing, the mediator brought the two together and asked Mary if she would be satisfied with Mel paying her in payments each month of at least $300. She said she would be fine with that. Then she asked Mel if he wanted to bring any other issues into the agreement other than the payment plan. He asked that she and her family stop harassing him as long as he was making the payments on time. They all agreed and the mediator wrote up the agreement, which they all signed. Mary had to leave immediately, so the mediator mailed a copy of the agreement to her. In this mediation, the mediator did most of the talking. The entire mediation lasted 35 minutes.”
The two cases studies above involve two different mediators utilizing the evaluative mediation style. You will note that although both mediators used the same style, they conducted the mediation very differently. One mediator avoided caucusing and the other used the tool of caucusing almost immediately. You will also note that although evaluative mediation is often described as providing an evaluation of the potential outcome in court, neither mediator in these two scenarios offered a predication or evaluation of how the Judge might rule in court. Further, one mediator did very little talking, while the other did most of the talking.
“In both cases, the mediators focused on resolving the monetary issue that brought the disputants to court. There was no discussion of other issues that may have surfaced because of the conflict, or whether the disputants wanted to salvage any kind of relationship. Both mediations were handled matter-of-factly and quickly. Neither of the mediators prompted the disputants to talk about their feelings regarding the conflict.”
“Neither mediator laid any kind of ground rules for the process either. However, a process emerged that was very clear: asking both parties to tell his or her stories, then asking each party how he or she would like to resolve the conflict. In both of these cases, a resolution came quickly and both parties were satisfied, so there was not a great need to explore any other options or issues.”
- Facilitative Mediators
Facilitative Mediation is an “Asking Process” Predominantly the mediator asks the party reflective questions. Facilitative mediation is less directive than evaluative and the mediator rarely gives opinions, if at all. They orchestrate the process but leave the outcome in the parties’ hands. Facilitative mediators’ help parties understand themselves and the other side, and the consequences of not settling. They assist the parties to evaluate and decide their own solutions to the problem. The facilitative process is tailored to clients’ needs and may look at legal standards as an objective criterion to identification of solutions and also standards based on the parties’ underlying interests. This assistance from the mediator in communications and identifying underlying interests helps parties identify their own resolutions of issues.
Joint Sessions often a default in both opening [convening] mediation and in mediation process, agenda setting, and prioritization of issues. Mediator seeks to facilitate open communication amongst parties and if present, their representatives (this can often shift to caucus forum at initiative of mediator, party or party representatives). Mediator seeks to facilitate negotiation (this can often shift to caucus forum at initiative of mediator, party or party representatives, particularly when mediator wishes to engage in reality testing). Mediator encourages building resolutions and reaching agreements. Closing often in joint session, but not always, depending on the degree of advancement parties have made in moving towards final resolution.
- Transformative Mediators
Transformative mediators are generally hoping to transform society with pro-peace techniques. These types of mediators empower the parties and transformation. It is the newest concept of the three styles, named by Folger and Bush in the book “The Promise of Mediation” in 1994. Emphasis is added to recognition by each of the parties of the other parties’ needs, interests, values, and points of view. The parties in this type of mediation session always meet jointly due to the mediators desire to promote recognition of the other and transformation.
“Supporters say that facilitative and transformative mediation empower parties, and help the parties take responsibility for their own disputes and the resolution of the disputes. Detractors say that facilitative and transformative mediation takes too long, and too often ends without agreement. They worry that outcomes can be contrary to standards of fairness and that mediators in these approaches cannot protect the weaker party.”
Transformative Mediator Case Study #1
“This mediation began with pre-caucusing with each disputant in her home weeks before the actual mediation took place. Three high-school freshman were involved in a school fight where the mother of one of the girls filed assault charges against the other two girls. First, the mediator met with Sarah and her mother, who had filed the charges. The mediator explained in detail the mediation process, and the possible outcomes, and then asked Sarah if she would feel comfortable going through this process with the other two girls. She said yes, so the mediator asked her what happened and how it made her feel. She also asked her what she perceived were the main issues. Sarah said that these girls just jumped her and her friends at school and she had to go to the hospital for her injuries. She said gossip started the fight and now she is scared to go to school because they threaten her. Then the mediator asked her what she thought needed to happen now. Sarah said she did not really know, but she wanted to go to school without being scared or receiving threats. After about fifteen minutes talking with Sarah, the mediator went to the home of the next girl, Julie, who had the charges pressed against her.
At Julie’s home, the mediator met with her and her mother and asked the same questions. Julie stated that she did not even know why the charges were being pressed against her because she was not even involved in the fight. She was never suspended for the fight, when other girls, including Sarah, were. She said she felt scared and angry because she does not want assault charges at such a young age and because Sarah was going around school telling everyone she pressed assault charges against Julie. She hoped that through mediation the charges against her would be dropped. The mediator was never able to contact the third girl in the conflict.
The mediator scheduled a joint session with the two girls she was able to reach and asked them to tell the third girl, if they saw her, to come to the joint session, or call the mediator. When the time came for the mediation, Julie was the only disputant to show up. Julie and her mother said they had gone through a mediation with the school and brought the resolution that she and the other girls, along with their mothers had drawn up, with the help of the school board. Since the other disputants did not show up, the mediator asked Julie if she felt the resolution that they came to at school was fair and she said yes, so they ended the mediation.”
Transformative Mediation Case Study #2
“Two grade school girls, Lily and Anna, were involved in a fight at school and the school suggested that they go to mediation because Anna’s glasses were broken in the fight and her mother wanted Lily’s mother to pay for them. Just as the case study above, the mediation began with pre-caucusing at each girl’s home. The same questions were asked of each girl. Both agreed to mediation and both said, “She started it.”
When the two girls came together with their parents for the joint session, the mediator explained the process and confidentiality. Then she asked the girls what they thought would be appropriate guidelines or rules for the mediation. Lily said that there should be no interrupting and Anna said that there should be no name-calling. After they agreed to these guidelines, the mediator asked Lily to tell her story. Lily said it was her third day at a new school and Anna was calling her names so she called Anna names. Then she tried to get away through a crowd of students and Anna said, “Don’t say those things to me,” and then Anna hit her. The mediator paraphrased Lily’s story and asked her if she summarized it correctly. Lily said yes, then the mediator asked Lily how she felt after the fight, and Lily said “angry.”
The mediator then asked Anna to tell her story. She said lots of kids were teasing Lily at school and Lily took it out on her. Anna said someone pulled her hair and when she turned around a group of kids pushed her into Lily to fight her. She said she hit Lily and then Lily hit her, knocking her glasses off. She said Lily stepped on them and broke them. Once again, the mediator paraphrased Anna’s story and asked her if it was correct, then asked her how it made her feel. She said, “mad.” Then the mediator asked Lily if she agreed with Anna’s story and she said she did. The mediator asked, “Where do you think this needs to go from here?” and “How are things now?” Lily said she had been transferred to another school because of the fight so they have not even seen each other since. The mediator asked, “If you had to do it over again, what would you do differently?” Both girls responded that they would have walked away. Next, the mediator addressed the parents, asking them what they thought. Both responded that they did not know what really happened and just thought that their child was being bullied at school. Anna’s mom said that she did not even want to worry about getting compensation for the glasses, since she now felt that both girls were at fault. Lily’s mother said she was going to talk to the school district about getting Lily back into the school now that she knows that her daughter was not being a bully or being bullied.
The mediator asked the girls if there was anything they wanted to say to each other. Both girls said, “Sorry.” The mediator wrote up the agreement that said, “We both made mistakes. We’re sorry and want to put this behind us. We won’t talk to our friends about the fight or the mediation.” Immediately afterward, the parents apologized to each other and both families chatted about how to get Lily back into the school. The entire joint mediation took one hour.”
The two cases studies above involved the same mediator utilizing the transformative styles of mediation. In the first case study, the mediator used many transformative techniques such as paraphrasing each girl’s story to reframe the conflict with less hurtful language and shifted into a more neutral story while retelling it. She also empowered the girls to state how they feel throughout the process and asking them what they thought she be done. In the second case, the mediator empowered the girls to set guidelines of the mediation and she set the stage for each girl to recognize the other girl’s point of view. “By asking what the girls would do differently in the second case study, the mediator reframed the conflict as a learning experience for the girls on how to and how not to handle conflict. This is an example of the long-lasting effect that transformative mediators hope for.”
- Combination of Styles
Experienced mediators will use a combination of styles dependent upon the parties’ interactions, underlying issues, and overarching goals. A mediator may begin a mediation using facilitative techniques, and at the end of a long day, urge the participants toward settlement using evaluative techniques. A mediator may combine both styles by proposing several alternatives in an evaluative style and then fostering communication in a facilitative manner so that participants may discuss the proposal.
In addition to the main mediator styles known as facilitative, evaluative, and transformative, other scholars refer to mediator styles and mediation models based on personal behavior, commercial needs, and legal or social norms. One must understand mediator behavior or the type of mediation being conducted to be able to comprehend how styles and models interact with impartiality requirements.
Before we again discuss Evaluative, Transformative, and Eclectic styles, here are briefly some innovative alternatives for restructuring traditional joint sessions to make them more productive:
- Involves a collaborative group attempt to understand each other with no set agenda
- Mediator acts as the joint discussion host to initiate conversation and mostly stay quiet as long as it goes well, occasionally joining in to take the conversation in a different direction
- Abandons traditional no-interruption rule in mediation
- Uses interactive dialog rather than a monolog, argument, or lecture
- Encourages polite, non-confrontational questions
- Especially suited but not limited to pre-suit mediations and those with limited discovery
- Little if any lawyer resistance or flare-ups
- Mediator sets the agenda for focused joint discussion by specifically requesting the parties to address particular issues the mediator feels might be outcome-determinative
- Mediator thus controls what topics counsel discuss and the basic flow of information in an organized way
- Mediator prepares a discussion outline for use in joint session based on information gleaned from pre-mediation written submissions and ex-parte conversations with counsel
- Discussion then flows from the mediator’s outline as the mediator directs questions to one side or another
- After the mediator’s directed discussion, the parties are given the opportunity to raise anything else, by question or comment, that they believe should be communicated to the other side before separating into private caucuses to further discuss and consider the issues raised
- Counsel and the mediator jointly collaborate to pre-arrange and set the agenda for focused joint discussion, thus giving counsel some control over the process
- Dependent on counsel’s submission of pre-mediation materials far enough in advance of the hearing to allow time for the mediator to follow-up with counsel before the mediation
- After reviewing the submitted materials, the mediator then confers with each counsel by phone to determine the critical issues and pressure points to be addressed as well as those to be avoided because they’re too inflammatory
- Mediator then works separately to convince each side to focus on those issues and points in joint session in order to lay the foundation for productive conversation between attorney and client in the caucuses to follow
- Involves an informal discussion, adhering to a pre-arranged agenda of specific topics, in which clients without attorneys or attorneys without clients (depending on where the impediments are), meet and talk together, usually in the mediator’s presence
- Relies on mutual agreement to have a casual conversation without confrontation, accusation, or argument
- Focuses on problem solving solutions not problem blaming
- Addresses only what is most important to each side
- Timing is important, and it usually although not always occurs in the later stages of a mediation
- Especially useful in relationship-based disputes such as employer/employee, close corporation or family business, probate, life partner breakups
- Not useful when there is a radical power or sophistication imbalance
- Similar to Eric Galton’s Learning Conversation in that all conversation takes place in open session, except for minimal private caucusing in order to: discuss problems, proposals, strategy, or confidential information; enlist the mediator’s help; or diffuse tension
- Emphasis is on interactive, continuous, open exchange of information back and forth
- Uses non-confrontational, non-argumentative questions interspersed with extended troubleshooting of issues, brainstorming options, and problem solving with creative, innovative, and unconventional ideas
Other that the three main mediation styles listed above, there are other mediation styles in existence. For example, “Michigan Mediation”. “The Michigan style of mediation resembles arbitration because a neutral third party renders a decision. In this type of mediation, court rules require a neutral evaluation. Normally the court selects three evaluators from a panel of attorneys. After reviewing written briefs and hearing some argument from counsel, the panel makes an “award.” Although the award is not binding, the rejecting party will be sanctioned if it fails to obtain a better result at trial.’ In 2000, the Michigan Supreme Court revised its Court Rules regarding Alternative Dispute Resolution primarily to change terminology. What was known as the “Michigan Mediation” pursuant to Michigan Court Rule 2.403 changed when the term “mediation” was changed to “case evaluation.”‘ A new court rule, Rule 2.411, was added to describe mediation using generally recognized principles consistent with the definitions of mediation provided above. Other variations of the traditional “Michigan Mediation” continue to exist. Florida has a statute that regulates Campus Master Plans and Campus Development Agreements. It requires that parties’ mediate disputes that arise while implementing executed campus development agreements. Pursuant to this mandate, each party selects a mediator, and the two mediators in turn select a neutral third mediator. The panel of three mediators issues a recommendation to resolve the dispute.”
Mediators are guided by written definitions and Standards, which is discussed in greater detail in the ethics section below. A mediator’s role is often dictated by his or her own personal style and values in connection with the needs, or perceived needs, of the participants. A mediator’s style can often affect the outcome of the mediation. Although, little research exists to measure the effect of a mediator’s style. “One research project measured the extent to which evaluative and facilitative mediators’ styles affected party satisfaction and the amount of money obtained by a mediated settlement. That research project was limited to a study of evaluative versus facilitative mediator styles in the context of the Equal Employment Opportunity Commission’s (“EEOC”) mediation program. Another more generic study focused on four neutrals who worked on one simulated dispute. The study illustrated that mediators employ various styles within a single mediation and that the final outcome of the mediation may be due in part to a mediator’s style combined with the disputants’ personalities and approaches. A third study concluded that a mediator’s style in community mediations did not affect the final outcome.”
When discussing mediation, you will often find more concern about evaluative and transformative meditation than facilitative mediation. Facilitative mediation is generally more acceptable to almost everyone, although many find the practice too time consuming or less useful to the parties seeking guidance. Many find evaluative mediation to be too coercive, top-down, heavy-handed, and not impartial, which one may say is contradictory to the purpose of mediation. Transformative mediation is criticized for being too idealistic, not focused enough, and not useful for business or court matters, although evaluative and transformative mediators, of course, would challenge these characterizations.
“Sam Imperati, for example, sees evaluative mediation as ranging from soft to hard: from raising options, to playing devil’s advocate, to raising legal issues or defenses, to offering opinions or advice on outcomes. He therefore believes that it is not appropriate to assume that evaluative mediation is necessarily heavy-handed. Folger and Bush, on the other side of the discussion, see transformative mediation as ultimately flexible and suited to all types of disputes.”
Another concern is that many attorneys and clients do not know what they may get when they end up in a mediator’s office. Some people feel that mediators ought to disclose prior to clients appearing in their offices, or at least prior to their committing to mediation, which style or styles they use. Other mediators want the flexibility to decide which approach to use once they understand the needs of the particular case.”
- Negotiating Styles
There are two basic approaches to negotiating. The first approach is known as positional bargaining and the second approach is interest-based bargaining. Positional bargaining is the approach everyone tends to think about when negotiating an agreement. The idea is to decide, “what do I want and how am I going to play a game to get what I want based upon my position?” This method of thinking and coming into a mediation makes the process a challenge. The second method, interest-based negotiation, is known to educated mediators and can be taught to participants through the process. Interest-based negotiation makes mediation a more amicable process wherein everyone learns to think about their interests as opposed to their position. For example, rather than state, “I want sole legal custody of the children” (position bargaining), you can teach the participant to explain why sole legal custody is important to him or her (i.e. because you are difficult to get ahold of when I try to make a decision for the kids), which in turn will allow everyone to brainstorm ways to address the overarching issues (Suggestion for a busy executive, maybe purchase a separate cell phone used strictly for parenting that must be available at all times) as opposed to sticking with the narrow position of demanding sole legal custody.
“Expanding the pie” is a very common phrase used in the world of negotiation. But many people don’t know what it means. It means identifying additional value to add to the deal – above and beyond the initial target or desire. If you are negotiating a purchase, it could mean adding additional products or services to sweeten the deal, that may not have been on the table before. Every negotiation is different but there is almost always hidden opportunities to uncover. Expanding the pie should be part of the negotiation strategy.
“Here is a great example: Lets say you want to buy a house. Often times people focus primarily on negotiating the price. But there are many other opportunities that can be brought to the table in the negotiation to sweeten that deal – and sometimes can even make a deal possible when it otherwise wouldn’t have worked out. For example, new carpet and paint. Those are expensive upgrades and can affect the overall cost you would have to invest. Furniture… If you like something of theirs why not ask for it to be included? Appliances, drapes, outdoor play structures, tiling, cabinet replacement, etc. The possibilities are endless and most people do not think to fully explore every possibility. Even realtor fees can be negotiated when you are close to coming to a deal. Everything is on the table so it’s really a matter of how you divide it. This is called expanding the pie.”
Expanding the pie may sound really simple, but it is actually quite difficult. Expanding the pie is a skill that requires a lot of experience and training, in order to be done successfully. You have to be able to really dive deep and explore all potential options and opportunities that are not immediately apparent.
Positional Bargaining/Competitive Approach
- Manipulative approach designed to intimidate or coerce other party into accepting your demands;
Resolution results because you can persuade your opponent that your position is more just, fair, rational, or reasonable;
- Disputants believe that there are limited resources;
- The solutions are distributive, i.e. we must allocate gains and losses;
- This is about winning and losing-if I win, you have to lose;
- Disputants have positions, not options;
- Start with high opening demands, hold on as long as possible, and give small concessions just to keep the process going;
- Disputants may deceive the opposition about their real interests;
- There is a contest of wills with threats, tension, and pressure; and, among other thing,
- A good agreement is “more than fair”.
Risks and Drawbacks:
- Future relations may be damaged;
- Confrontation may lead to rigidity, which increases the likelihood of impasse;
- It is costly because it takes time;
There is limited exploration of the merits of the dispute or relevant criteria for resolution of the dispute;
- There is limited development of alternative solutions;
- Positions may be artificial defensive responses that do not address the underlying needs or concerns; and, among other things,
- While you might “win” your position, you might not get what it is you really want.
- Interest Based Bargaining / Principled Negotiation
- Problem-solving approach that seeks integrative solutions to meet as many of each disputant’s needs as possible;
- The focus is on an exploration of parties’ underlying interests and needs rather than on their positions or demands;
- Parties are encouraged to develop multiple options for mutual gain;
- Independent, objective standards are used to evaluate options;
- There is analysis of the merits of the dispute;
- Parties’ relationships are less likely to be damage;
- Bottom lines are avoided;
- Parties know their “BATNA” (Best Alternative to a Negotiated Agreement) and their “WATNA” (Worst Alternative to a Negotiated Agreement);
The process invites input from all disputants and encourages questions; and, among other things,
- The process allows the parties to be open to reason.
Risks and Drawbacks:
- A disputant will have to “give in” or become competitive;
- Disputants may feel like a failure if no agreement is reached; and
- A disputant may expose their weaknesses by honest disclosure that is not reciprocated.
- Separate the people from the problem and deal with problems directly;
- Educate to correct misperceptions and find ways to express emotion/let off steam;
- Improve communication where misunderstanding exists;
- Support efforts to solve the problem;
- Theory of Cognitive Dissonance – People dislike inconsistency and will work to eliminate it. By supporting these people, they will work with you to create consistency;
- Focus on interests, not positions – Positions: defensive statement about unmet needs;
- Concerns/interests that motivate all people: Security, Economic well-being, Sense of belonging, Recognition, Control over one’s life
- Opportunities for resolution are increased;
- Shared interests can make for more creative agreements;
- Look at multiple options; and
- Brainstorm as many ideas as possible before making decisions.
Obstacles that inhibit options
- Premature judgment;
- Looking for the one right answer;
- Assuming there is a fixed size of pie; and
- Focusing only on your wants.
- Effective Listening
To be an effective listener, one must listen to understand from the participant’s perspective be aware of what is not being said as well as what is being said, listen empathetically (this does not mean you agree, just that you understand their perspective), and reflect back to the speaker the content as well as the emotion of their communication to let them know that you heard them fully. You will also need to build rapport by using metaphors and stories, listen to the language used and match, pace, and lead the participants in a comfort zone.
Matching is the combination of reflective listening (reflecting back to the parties the content as well as the emotion of their delivery) and reflective body positioning. In other words, allow your physical body to somewhat match their stance. If they lean forward in their chair, lean somewhat forward in yours. As rapport is developed, you will be able to pace, or gracefully mirror, their communication. Participants will respond to questions that seek clarification and understanding on your part. Once participants feel heard and understood, they will allow you to lead them through the process.
Reflective listening is an extension of listening, in which the listener lets the speaker know that he or she has been understood by saying back the thoughts and feelings that were heard. Reflective listening done well, validates the speaker and helps clarify his or her thinking. Reflective listening is comprised of attending skills and responding skills
- Mirror and Affirm
Reflective listening involves the technique of mirror and affirm. The mediator should mirror back to the participant what is being said and affirm you are listening and you understand their perception. Example: “Last night my husband came home really late last night. He was drunk again. We started arguing, but it is no use. I am so angry at him. He will never change.” Your husband came home late last night, he was drunk, and you are very angry because you feel like there is no point in arguing. You seem to be feeling frustrated by your husband’s drinking, which often leads to arguments. You are also unsure of how to deal with this problem, which leaves you feeling helpless, sad, and hopeless.
The purpose of affirmation is to encourage the participants in making healthy decisions and behavior during the mediation process and when making decisions for negotiating.
Framing is the manner in which a conflict, situation, interest, or issue is defined by the disputant. The way problems are framed comes from the history of the relationship (e.g., ‘Being late to pick up the kids is an attempt to control my social life.’], and the party’s needs [e.g., “I won’t be controlled anymore!”). The way an issue is framed is the subjective reality for the disputant and prevents them from other explanations.
Reframing is a process of changing how the disputant defines the conflict, interest, or issue. Reframing can be used to modify issues, identify underlying interests, define problems according to those interests being met, prevent emotional confrontations, and decrease or enhance a disputant’s statements. It encourages parties to look at problems in a different way which opens the doors to solutions
Reframing is as important to the content of disputant statements as reflection is to the feeling context of those statements. Through reframing, mediators neutralize positional statements, define what the parties need, make comparisons, and create movement. Reframing is what saves the day when a specific demand is made, when emotional tension is rising, and when the parties are beginning to become positional. In these instances, the mediator should reframe before the other disputant has a chance to respond. Often it is effective to deflect a statement and follow it with a reframe so that the focus stays on the agenda and mediation does not become therapy.
There is no perfect reframe to each situation. Sometimes a mediator may want to act like they slightly misunderstand the intensity of a statement when reframing. This technique is useful to change the meaning slightly so it is less adversarial, identify the commonalities in interests (linking), minimize difference, or broaden or narrow the meaning by generalizing or partializing. This should be used cautiously, however, and only after the parties have been supported and their issues validated through reflective listening.
- Restate the content without value-laden language
- Generalize to eliminate a personal attack
- Move from over-generalized accusations to specific examples
- Move from past to future
- Move from negative to positive
- Find common ground
- Move from positions to interests
- Move from “the truth” to different memories, perspectives, or stories
- Move from accusations to a person’s intention and an unintended impact
- Move from blame to each person’s contribution to the conflict
- Move from judgments to feelings about the conflict
- Move from what is wrong with a person to what might be going on in the conflict
- Questions Versus Statements
The mediator is already perceived as an authority figure. Making statements furthers that perception. The risk is that the participants will give up “ownership” of their issues and let the mediator make the decisions. Since one of the goals of mediation is to help participants determine for themselves what is in their best interest, it seems that asking them questions will help them to figure out what it is they want to do. Statements can be rebutted whereas questions call for parties to think about the answers.
Open-ended, non-directed questions allow for assessment
- How can I help you?
- What are your worst fears?
- What concerns do you have?
- How do you see the situation from your perspective?
Closed-ended, directed questions bring closures
- Do we need to spend more time on this issue?
- Have we covered all the bases here?
- Does that work for you?
Reflective questions tend to bring to the surface underlying or unstated needs or interests of the parties
- How would you like to make decisions regarding your children?
- What do you think would be a fair method of determining the damages?
- If you could wave your magic wand, what would your future relationship look like?
- What do you need to have in this agreement to make it acceptable to you?
- How will you know the agreement is fair?
- What are you willing to give to them in order for them to agree to your requests? What can you offer them so that they would be willing to agree to your requests?
- Describe for me what the accident was like for you.
“In mediation, being nonjudgmental is one of the most difficult and important tasks. As mediators, we are supposed to be neutral to the parties, the outcome, the “facts.” We are always engaged in a process of practicing neutrality. As human beings, of course, it’s nearly impossible to perfectly suspend judgment, but we are asked to do our best in this regard. This requires refraining from labeling parties’ behavior in the conflict as “good” or “bad,” etc. and refraining from telling stories of our own by making assumptions about the parties or their reasons for behavior. Thus, the practice of nonjudgment, or neutrality, for mediators is about constantly reminding ourselves to be present with the parties and their reality. This means testing our understanding of their reality with curious questions and not assuming we know the answers already.”
- Challenges in Mediation
- Private Caucus
Once the foundation for a successful mediation has been laid, the private caucuses become the focus. The mediator will spend time in private discussions with each side in the mediation. Properly performed, this requires much more than simply carrying offers and counter offers back and forth. Most of the analysis and discussion with attorneys and their clients ultimately needed to assist in effecting resolution is done in private caucuses. Complicating this stage of the mediation, however, is that lawyers may engage in “positional bargaining.”
Again, positional bargaining characteristics may include high demands and low offers, the use of threats and bluffs, and being secretive about true needs or exposures. The result is to slow the mediation process and make ultimate resolution more difficult. Lawyers who discuss the case, their needs, exposures, and risks candidly and objectively with the mediator in this confidential setting will find the process more effective. Accurate information plays a critical role in whether the mediation process is ultimately successful. Of course, the mediator must have demonstrated his or her sincerity in fairly trying to bring the parties to a mutually acceptable resolution and must have earned their confidence through his or her conduct. These candid discussions, even though confidential, are more helpful to the mediator, and the process is more likely to result in successful resolution. Again, confidentiality is essential, and the mediator must emphasize that no information will be disclosed to the other side without consent.
Here is a complete list of reasons mediators cite for deciding to caucus:
- create a productive pause in the process (relief from tension)
- engage in meditative reference point or “what if” process
- permit party movement without losing face
- offer negotiating advice
- assess alternatives to negotiated settlement
- test whether a party’s proposals are realistic
- act as a sounding board
- work to develop settlement proposals
- as means of garnering information that will not otherwise come out
- Preventing and Breaking Impasse
When neither party is willing to make another concession to reach agreement, they are at impasse. To help break through impasse, a mediator should consider using one or more of the following strategies:
- Ask diagnostic questions. Ask questions like, “What do you believe would be the best solution for everyone?” or, “What could your opponent do to signal progress?”
- Bracket your way to compromise. Ask each party, “If the other party were to offer _____, would you be willing to offer _____ in return?” This approach often helps a party move into the range of reason without requiring the other party to move there first.
- Encourage a party to make a concession and the other party to reciprocate. When you name the concessions the parties have made and recite the reciprocal moves by the other, the parties feel more satisfied about the progress they’re making and more hopeful about their ability to close the deal.
- Perform a cost-benefit analysis. Calculate the costs and benefits of any proposed solution as compared to the costs and benefits of the parties’ failure to reach agreement.
- Reframe the possible outcomes. When a party refuses to make further concessions, to save face or avoid the impression that he’s lost, reframe the resolution from loss to victory by stressing, for instance, that resolution is control over the conflict.
- Soften a hard offer or demand. Ask diagnostic questions to learn the reasons why a party refuses to make further concessions or is standing by an unreasonable offer or demand. Explaining the reasons for one party’s intractability to her bargaining partner can soften what seems to be a hostile or unnecessarily adversarial position.
- Use a decision tree. Draw a flow chart illustrating the possible outcomes of the choices the parties have.
- Domestic Violence and Tolman Screening Model
As a mediator, we need to screen for domestic violence prior to mediation to ensure the environment and each participant, including the mediator and others in the building are safe. The screening technique you may is the Tolman Screening Model, see below.
Tolman Screening Model
Richard M. Tolman, Ph.D.
Jane Addams College of Social Work
University of Illinois at Chicago
1. Mediation often occurs with both spouses in the same room together. Do you have any concerns about mediating in the same room together with your spouse?
The rationale for this question is that it may tap reluctance to participate in mediation because of physical abuse without directly asking for it. Thus, it may be effective as a broad screening question, even if abuse victims are reluctant to directly disclose abuse. On the other hand, reasons other than abuse may result in concerns about mediation, and these would have to be sorted out in further screening.
2. Are you fearful of your spouse for any reason?
This question taps the subjective perspective of the respondent. It does not assume fear is a result of physical abuse, nor is it limited to fear of physical harm. It may identify fears of various types (taking children away, fear of humiliation, fear of spouse harming himself, etc.)
3. Has your spouse ever threatened to hurt you in any way?
This question is similar to question #2 in that it asks about threats in a broad manner, not limited to physical abuse. It adds information about the spouse’s behavior, rather than focusing on the subject perspective of the respondent.
4. Has your spouse ever hit you or used any other type of physical force towards you?
This question directly asks about physical abuse, though it does not use the term abuse. Many women who experience physical abuse may not label it with that term. This question is more neutral in its terminology and may elicit more positive responses. On the other hand, further screening may clarify the physical force used as non-abrasive. For example, a spouse’s use of physical force may be legitimately self-defensive.
5. Have you ever called the police, requested a protection from abuse order, or sought help for yourself as a result of abuse by your spouse?
An affirmative answer to this question would demonstrate that abuse is a significant problem. However, serious abuse might have occurred even if it is answered negatively.
6. Are you currently afraid that your spouse will physically harm you?
This repeats #2, except that it more pointedly asks about physical abuse. An affirmative answer to #2 and a negative answer to #6 would point the screening towards a clarification of the nature of the respondent’s fears. It also may clarify that while the respondent experienced abuse in the past, she is not currently fearful. This also would indicate a direction for further screening.
7. Mediation is a process in which divorcing spouses work together with a neutral third person to negotiate details of their divorce. Do you believe you would be able to communicate with your spouse on an equal basis in mediation sessions?
This question indicates the respondent’s subjective perspective about ability to mediate. A negative response would lead to further screening about the reasons for the inequality. If previous questions about abuse were answered negatively, but this question is answered positively, it may indicate that the reason for inequality is not physical abuse, but some other factors, including psychological maltreatment. This could then be clarified further. On the other hand, if abuse questions are answered positively, but this question is answered negatively, it might reflect the respondent’s belief that the abuse has not hampered her ability
to use mediation effectively.
(If the couple has children, also ask the following questions.)
8. Has your partner ever threatened to deny you access to your children?
9. Do you have any concerns about the children’s emotional or physical safety with you or the other parent?
10. Has the department of children or family services ever been involved with your family?
- Types of Domestic Violence
There are four (4) types of domestic violence: (1) coercive controlling violence, (2) violent resistance, (3) situational couple violence, and (4) separation instigated violence. The coercive controlling violent offender demonstrates an abusive pattern of coercion and control with physical violence against his or her partner. The violent resister has an immediate reaction to assault from the coercive controlling partner in order to get violence to stop, stand up for self, and/or protect others. (Television Show, “Snapped”) The situational couple violence are the couples that exhibit violence to the other and typical characteristics includes, neither partner fearing the other, likely to stop after separation, and, among other things, poor ability to manage conflicts. Lastly, the separation instigated violence are those couples that exhibit violence as a result of separation, which is uncharacteristic and have no previous history of violence.
- Power Balance
- Providing Safety
It is important for the mediator to ensure participants are safe during the mediation process. The mediator needs to know what type of domestic violence couple he or she is planning to meet with and what types of abuse exist such as sexual abuse, psychological abuse, and economic abuse. The risks for mediation include unequal bargaining power, unidentified interests, inability to articulate interests, fear of retaliation, suppresses own needs, subtle manipulation by the abuser, and physical safety. Again, to screen for these issues you may use the Tolman Screen Model and/or conduct a face-to-face interview or telephone interview. To ensure physical safety, the mediator may consider the following options:
- Separate waiting areas or third-party presence in waiting area
- Arrive and depart at different times
- Escort each party out, if necessary
- Plan seating so that abused party sits closest to door
- Visible third-party presence in office during mediation
- Don’t leave parties alone in the same room
- Individual breakout rooms in addition to the mediation room
- Have a telephone in the mediation room, and if possible, in the breakout rooms
- Remove objects that are easy to throw
- Put a table between the parties
- Prohibit weapons and use metal detector for screening
- Emergency alarm button that goes to security
- Closed circuit video surveillance
- Multiple exits that are clearly marked
- Doors that lock automatically once a person has exited
Styles of mediation to use in domestic violence situations include:
- Co-mediate with opposite sex
- Shuttle mediation and/or Telephone mediation, caucuses when necessary
- Conference calls with both parties and/or Separate sessions
Ground Rules – Allow parties to set ground rules as necessary because it invests parties in the process, accords respect in their abilities and sets stage for negotiations and agreement. Record ground rules in writing signed by parties to foster commitment to the process and it increases likelihood of adherence to rules. Lastly, stick to the ground rules!
- STAGE OF FAMILY LAW MEDIATION
- The Seven (7) Stages of Family Law Mediation
Family law mediation has seven (7) basic stages which promote forward-looking. The goal, unlike in litigation, is for all parties to work out a solution they can own and trust. It focuses on solving problems, not uncovering the truth or imposing legal rules. The seven (7) stages are as follows: (1) consultation session, (2) learning and setting expectations, (3) gathering of documents, (4) property division, (5) parenting plan, (6) memorializing the agreement, and (7) follow up.
- Consultation Session
During the consultation session, the mediator should provide the participants an overview of the mediation process, a background about yourself as the mediator, answer questions, discuss the duty of confidentiality, and discuss fees.
- Learning and Setting Expectations
During this meeting you will learn about the participants, set expectations, and discuss/sign an Agreement to Mediate. The mediator will assess the client’s expectations of their relationship by asking how they view their relationship now, at the day of divorce, and sometime in the future; asses their standards of fairness by asking them to define a fair and unfair agreement; ask them to rank the topics to be discussed from easiest to hardest; and ask about any immediate issues that need to be discussed.
- Purpose and Process
Again, the purpose of this meeting is to help the participants determine if mediation is right for them, asses participants expectations for the future of their relationship and for the fairness of the agreement; organize the process, and make sure they are comfortable with you as the mediator.
- Sample Mediation Agreement
Prior to the first mediation session, both parties and the mediator will need to read, discuss, and sign a mediation agreement. The general purpose of the mediation agreement is to reiterate the mediation process, the responsibility of the mediator, the responsibility of the parties, and the fees associated with mediation as well as to have each participant agree to these terms in writing. Below is a sample mediation agreement from the Missouri Bar.
AGREEMENT TO MEDIATE
The following parties:
(hereinafter referred to as “Parties”) agree to participate in mediation in their efforts to resolve matters in question or in dispute. The parties further agree to hire _________________________________________________ as the mediator to facilitate the mediation sessions.
The mediation process is confidential. Parties and Mediator expressly understand and agree that any communication made during the mediation process shall be confidential and privileged. Parties and Mediator agree that Missouri law at Section 435.014, Revised Statutes of Missouri provides this legal protection for confidentiality and privilege to the mediation process, unless the communication is otherwise discoverable or obtainable. However, for Parties to acquire and develop full and accurate information in order to make informed decisions, Parties agree that each other may consult appropriate experts, especially attorneys, outside of the mediation. Parties agree that they will not request that Mediator testify in any legal proceeding or that Mediator provide any records for use outside of the mediation process. Mediator shall not disclose any information about the Parties or records produced in the mediation process unless compelled by law. The mediation process is voluntary and Parties agree that either Party or Mediator may terminate a mediation session.
Responsibilities of Mediator
Mediator agrees to provide mediation services by aiding and facilitating the Parties in their discussions of the matters that each party wishes to present in the efforts to seek resolution. Parties understand that Mediator has no authority to decide a resolution or to determine any fact or to issue rulings about the law. Parties further understand that Mediator, while possibly licensed as an attorney at law, will not provide legal advice or legal representation to Parties. Parties acknowledge that Mediator has disclosed any conflict of interest, if any, prior to the signing of this agreement. Mediator agrees to continuously disclose any other conflict of interest that reveals itself during the mediation process. At the end of the mediation process, if requested by the Parties, Mediator shall prepare a written Proposed Memorandum of Understanding recording Parties’ agreements for review by the Parties’ attorneys.
Responsibilities of the Parties
Parties agree to participate in the mediation process by attending mediation sessions at the agreed upon time and place. If an agent represents a Party (such as cases with corporations), that Party agrees that the agent has full authority to resolve issues (or has immediate access to the necessary authority). Since good faith negotiation and informed decision-making necessitate complete and accurate information, Parties agree to the best of their abilities and knowledge to provide complete and accurate information during the mediation process. Parties agree to pay the professional fees and cost of mediation as more fully stated hereinafter.
Professional Fees and Costs of Mediation
Parties agree to pay an hourly rate of $ _________ per hour as the fee for Mediator’s services. This fee is separate from fees for accountants, attorneys or other experts with whom Parties may consult. The time charged includes time Mediator may spend outside of the mediation sessions on behalf of Parties. Parties agree to pay Mediator for any travel time, both local and out of town, but only for one way at the hourly rate. Portions of any hour shall be charged at the same hourly rate at the nearest tenth-hour increment. If overnight travel is required, Parties agree to pay the reasonable expenses incurred by Mediator.
Parties agree to prepay Mediator by maintaining a cash deposit with Mediator. Parties have made an initial deposit of $______________. Parties authorize Mediator to use the money deposited to pay fees and costs as they are incurred. Mediator periodically will send billing statements to Parties that itemize the charges taken against the deposit. Withdrawals from the deposit will occur ten (10) days after the date of the billing statement, provided Parties raise no protest to any of the charges. If a billing statement charge exceeds the deposit, Parties agree to pay that balance in full within fifteen (15) days of the date of the billing statement. Parties further agree to pay an additional charge calculated as an interest charge of ten (10) percent per annum for any unpaid balance that remains after its due date. Mediator reserves the right to suspend mediation sessions until Parties pay any past due balances and provide a deposit for future fees.
Parties agree that if any concerns exist about the nature or quality of the mediation services or the fees charged, Parties will raise those concerns directly with Mediator. If Parties and Mediator cannot resolve the concerns, Parties and Mediator agree to mediate for at least one session with another professional mediator chosen by Parties. The costs for that mediation shall be evenly divided among all Parties and Mediator, such that each participant in that mediation pays the same amount.
IN CONSIDERATION of the mutual promises contained herein, this agreement is made on the date of ________________________.
Signature of Party
Signature of Party
Signature of Mediator
Before the start of family law mediation, the mediator will need a great deal of information about the parties’ marriage, financial resource, property, and children. To obtain this information, you may consider providing the parties homework, to be discussed in detail in the next section.
- Gathering of Documents
- Sample Questionnaire
As part of the homework, you may want your participants to answer questions similar to the following:
Dispute Clarification Questionnaire
- What was your relationship at the beginning; how did you get together?
Did you trust each other?
When did you first suspect that something was going wrong?
Did you feel betrayed, taken advantage of, ignored, undercut, etc.?
Did you discuss your feelings with__________; when; how often?
Have these beliefs changed, if so, how?
What do you believe__________owes you on account of these actions?
- Are there any areas where you agree, or are close to agreement?
- What are the areas of greatest disagreement?
- In the areas of disagreement, what criteria will you use to judge the merits of your and __________’s claims?
- What are the most important points an agreement must have to satisfy you and why are they important?
- What do you believe are the most important points to__________?
- Are there topics you would prefer to not discuss?
- Are there things__________might say that would cause you distress or cause you to lose your temper? If this happens how can I help to keep our discussion on track?
- Are there areas or items you are not willing to discuss? Why?
- If we do not arrive at an agreement and you go to court or arbitration:
What do you think could be your best result?
What do you think could be your worst result?
- Please indicate which of each of the following three statements are more important to you.
- An immediate solution even if it is less than I would like, or a big win even if I have to wait a few years;
- Financial satisfaction, or emotional satisfaction; or
- Ending the conflict and dispute quickly, or getting even?
- Do you have any suggestions as to what I might do that would help bring about an early resolution of this problem?
- Is there any other information that might have a bearing on this matter?
- Sample Document Exchange List
As part of the participant’s homework, you will want to provide a document exchange list. This allows freedom to pass information and documents confirming figures and building trust in the process. Obviously you may add to this list, but a sample document exchange list is as follows:
Document Exchange List
- Past three (3) years of federal and state income tax returns including all scheduled, W-2, K-1 and 1009 forms;
- Past three (3) months of wage stubs (or other evidence of wages, tips or salaries if wage stubs are not issued);
- Past twelve (12) months of any statements or other documents evidencing expenses incurred pertaining to work-related child care costs, premiums payments for health insurance for the child(ren) of the parties and dental and orthodontic costs attributed to the child(ren) of the parties;
- Three (3) most recent statements for all bank accounts and all other accounts held jointly or individually by the parties in any brokerage firm or other financial institution;
- The most recent benefit statement for any retirement plan, whether vested or no vested, in which a party has an interest;
- Any appraisal of any marital or separate property conducted in the past twelve (12) months;
- Past three (3) months of credit card statements;
- The most recent mortgage statement for any real property owned jointly or separately by the parties and copy of the deed for any such property; and
- The most recent balance statement for any existing debt owned jointly or separately by the parties.
- Sample Statement of Income and Expenses
You likely want both parties to complete a Statement of Income and Expenses, or your local equivalent before scheduling the first mediation session. This document allows the mediator to learn the financial status of the parties, identify key issues and possible points of contention, and prepare various maintenance and child support calculations before mediation, if applicable, to have an idea of what the parties may discuss during mediation and to help brainstorm ideas about what may be workable for the parties. A sample Statement of Income and Expenses is below:
|IN THE _________ JUDICIAL CIRCUIT, STATE OF ____________|
FAMILY COURT DIVISION
STATEMENT OF INCOME AND EXPENSES
|A. Name and address of employer|
|Gross Wages or Salary and Commission each Pay Period||$|
|PAID: Weekly Bi-Weekly Semi-Monthly Monthly|
|Number of Dependents Claimed:|
|FICA (Social Security Tax)||$|
|Federal Withholding Tax||$|
|State Withholding Tax||$|
|TOTAL DEDUCTIONS EACH PAY PERIOD:||$|
|NET TAKE HOME PAY EACH PAY PERIOD:||$|
|B. Additional Income from Rentals, Dividends and Business Enterprises, Social Security, A.F.D.C., V.A. Benefits, Pensions, Annuities, Bonuses, Commissions and all other sources (give monthly average and list sources of income)|
|Average Monthly Total||$|
|C. Total Average Net Monthly Income||$|
|D. Your share of the gross income shown on last year’s Federal Income Tax Return|
|$||9. Cell Phone|
|$||TOTAL UTILITY EXPENSES||$|
|$||5. Road Service||$|
|$||TOTAL TRANSPORTATION EXPENSES||$|
|$||TOTAL INSURANCE EXPENSES||$|
|Yours||Children in your custody|
|Total Other Expenses||$|
- Sample Statement of Property
You likely want both parties to complete a Statement of Property, or your local equivalent before scheduling the first mediation session. This document allows the mediator to receive a list of all marital property, separate non-marital, and community property, if applicable. This document will help the mediator prepare a list of questions and topics to discuss during mediation, prepare an additional list of items necessary to prepare the final agreement, and will be useful while preparing the final agreement (i.e. legal description of property, titles to vehicles, Vehicle Identification Numbers, bank numbers, retirement account numbers, loan identifying information, etc). A sample Statement of Property is below:
|IN THE ________ JUDICIAL CIRCUIT, STATE OF ______________|
FAMILY COURT DIVISION
STATEMENT OF PROPERTY
|Present Value||Amount Owed||Marital or Separate Property|
|List Any Other Asset Not Already Listed Herein.|
|Current Balance||Monthly Payments|
- Property Division
Prior to the first mediation session you may begin to prepare an inventory spreadsheet for use during mediation. This document will be helpful to keep track of all property, the proposed value, and the proposed division by each participant. You may also use this spreadsheet while preparing the final division of property agreement, often referred to as the Marital Settlement and Separation Agreement. Check your state and local rules when preparing the final division of property agreement to ensure you comply with all necessary rules. Below is a sample inventory spreadsheet and Marital Settlement and Separation Agreement.
- Sample Inventory Spreadsheet
|ASSETS & SECURED DEBTS|
|TOTALS||$ –||$ –||$ –||$ –|
- Sample Marital Settlement and Separation Agreement
IN THE DISTRICT COURT OF _________, STATE OF _____________
CIVIL COURT DEPARTMENT
In the Matter of the Marriage of: )
JOHN SMITH, )
SSN: XXX-XX-____ )
Petitioner, ) Case No.
JANE DOE, )
SSN: XXX-XX-____ )
SEPARATION AND PROPERTY SETTLEMENT AGREEMENT
THIS AGREEMENT, made and entered into this ____ day of _______, 20__, by and between JOHN SMITH, hereinafter referred to as Husband, and JANE DOE, hereinafter referred to as Wife and collectively referred to as the Parties.
W I T N E S S E T H:
The parties were married on April 3, 1999.
The parties constructively separately in or around January, 2019.
Irreconcilable differences have arisen between the parties in their marital relationship, rendering it impossible for them to live together as Husband and Wife;
The parties desire to make this property settlement agreement pursuant to K.S.A. 23-2712 and K.S.A. 23-2802 for the purpose of having said agreement incorporated in a Decree of Divorce, and to the further end that they may make a final and binding settlement of all their rights and claims of each other, of every kind and nature whatsoever, subject only to such further provisions as herein contained; and
NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements herein contained, and the marital obligations of the respective parties, it is agreed by and between the parties as follows:
Husband shall pay to Wife maintenance for a total period of thirty-six months. The first maintenance payment shall commence on the first day of the first month following the date Wife relocates from the Marital Residence and each month thereafter for a period of twelve (12) months in the amount of ONE THOUSAND THREE HUNDRED DOLLARS ($1,300.00); beginning in month thirteen and each month thereafter for a period of twelve (12) months, Husband shall pay Wife maintenance in the amount of ONE THOUSAND TWO HUNDRED DOLLARS ($1,200.00); beginning in month twenty-five and each month thereafter for a period of twelve (12) months, Husband shall pay Wife maintenance in the amount of ONE THOUSAND ONE HUNDRED DOLLARS ($1,200.00). The parties agree that Husband shall make maintenance payments directly to Wife on the first (1st) day of each month.
Said maintenance shall cease upon any of the following:
- Death of Husband or Wife;
- Remarriage of Wife; or
- Cohabitation of Wife with an adult in a marriage like relationship.
The parties agree that the Court will retain jurisdiction to modify this maintenance obligation downward only upon a showing by Husband of a substantial and continuing decrease in his income.
DIVISION OF ASSETS
During the marriage, Husband and Wife have accumulated certain property and assets considered to be marital property. In addition, the Parties each have claims to certain separate, non-marital property. The property of the Parties shall be divided in accordance with the paragraphs that follow, without reference to its classification as separate or marital. Further, during the marriage, the Parties have accumulated debts considered as marital debts, and the Parties hereby agree to the following division of marital debts. Except as otherwise provided in this Agreement, the transfers and division of any property between Husband and Wife under this Agreement are intended to be tax-free inter-spousal transfers under Internal Revenue Code Section 1041 and are not intended to be deductible by the transferor or includible in the income of the transferee for income tax purposes.
- Real Estate: 123 Valley Vista Drive, City, State
a. The Parties acknowledge that they own as tenants by the entireties a residence known and numbered as ________________________________________ (hereafter referred to as the “Marital Residence”), the legal description of which is as follows:
- The parties agree to immediately list the Marital Residence for sale with an agreed upon realtor and the parties shall agree on the listing price. The parties agree to distribute the proceeds from the sale of the Marital Residence as follows:
FIRST, to costs of sale and other adjustments, including real estate brokerage commissions, if any, per closing statements in respect of ordinary and customary sales of residences in _________ County, State;
SECOND, to discharge any existing liens, charges, encumbrances, indebtedness, taxes, mortgages or deeds of trust thereon;
THIRD, Wife shall receive fifty percent (50%) of the remaining proceeds
LESS her one-half of the cost of improvements and
LESS $500.00 per month times the *number of months Husband resides alone in the residence until its date of sale, as described below (*Number of months being from the date of Wife’s relocation to the date of sale.); and
FOURTH, Husband shall receive all remaining proceeds.
Husband and Wife shall equally divide any deficiency owed;
- The parties agree to obtain a recommendation from the realtor about what improvements should be made to the Marital Residence and no improvements will be made unless both parties agree. The cost of improvements shall not exceed $10,000.00 (Ten Thousand Dollars) and shall be divided evenly among the parties. Husband agrees to pay the up-front cost of improvements to the Marital Residence and provide Wife with receipts in a timely manner. Wife’s fifty percent (50%) portion of the cost of improvements shall be paid from her one-half share of the equity;
- While both parties continue to reside together in the Marital Residence, the mortgage, insurance, utilities, property tax and any other debt, liability or encumbrance associated with the real estate shall be paid from the parties’ joint checking account, presently funded by Husband’s monthly income. Once Wife relocates from the Marital Residence, Wife shall immediately begin to owe Husband $500.00 per month on a pro rata basis and Husband shall pay the mortgage, insurance, utilities, property tax and any other debt, liability or encumbrance associated with the real estate until the residence is sold. Wife’s $500.00 monthly payment shall be paid from her portion of the equity; and
- The parties agree to keep the property in “show ready” condition once it has been placed on the market. The parties shall diligently cooperate with each other in connection with the listing and sale of the residence and securing a purchaser therefore and closing the transaction. Husband and Wife shall at all times ensure reasonable access to the residence by the realtor and cooperate with the realtor in marketing the residence. The sale price of the residence shall be mutually agreed upon between the parties; provided however, either party may at any time, upon the refusal of the other party to accept a reasonable bonafide offer to purchase the residence, unless premised on owner financing, apply to the Court for an order approving such purchase offer and directing the sale of the residence under the terms of said purchase order. In the event, the parties are unable to agree upon a listing price, each shall select an M.A.I. appraiser of his and her choice to appraise the residence, and the average of the two appraisals plus five percent (5%) to constitute the listing price thereof. Should either party fail to select an appraiser within fifteen (15) days of being given notice in writing by the other party to do so, the appraiser so selected by the non-defaulting party shall be the sole appraiser and his or her appraisal shall be conclusive and binding upon both parties. If in the event the Marital Residence is not sold by October 1, 2019, the parties will discuss options to reduce the listing price and this may continue every three (3) months until the home is sold.
- Motor Vehicles:
a. Wife shall receive as her sole and exclusive property the parties’ unencumbered 2007 Toyota Corolla, VIN ending in the last four digits #____. Upon the date of Judgment, Husband shall sign the Title to the 2007 Toyota Corolla to Wife, Wife shall immediately begin paying her own motor vehicle insurance, and Wife shall pay all personal property taxes and license renewal fees as well as Wife shall be financially responsible for all maintenance and repairs on said motor vehicle;
b. Husband shall receive as his sole and exclusive property the parties’ unencumbered 2009 Toyota Camry, VIN ending in the last four digits #____. Upon the date of Judgment, Wife shall sign the Title to the 2009 Toyota Camry to Husband, Husband shall continue paying his own motor vehicle insurance, and Husband shall pay all personal property taxes and license renewal fees as well as Husband shall be financially responsible for all maintenance and repairs on said motor vehicle; and
c. Each party shall execute and deliver to the other any and all documents necessary, including a gift affidavit, to confirm the conveyance of the entire right, title and/or interest in and to the above described motor vehicles awarded to each party.
3. Bank Accounts:
a. Upon the date of Judgment, the parties agree to close and equally divide the entire balance of their jointly-titled USAA checking account, ending in #____;
b. Upon the date of Judgment, the parties agree to close and equally divide the entire balance of their jointly-titled USAA savings account, ending in #____;
c. For the year 2019 and thereafter, each party shall report on his or her respective Federal and state income tax returns any interest or dividends attributable to the accounts received by such party as set forth in sub-paragraphs above; and
d. Husband and Wife acknowledge and agree that there are no other bank accounts titled jointly, individually, or jointly with another individual not specifically named herein and divided by this Agreement.
4. Household/Personal Goods:
- Wife shall receive as her sole and exclusive property: (1) All of Wife’s clothing, jewelry and personal belongings; and (2) All household goods agreed-upon by the parties;
- Husband shall receive as his sole and exclusive property: (1) All of Husband’s clothing, jewelry and personal belongings; and (2) All household goods agreed-upon by the parties;
- The parties agree that within six (6) months of the date of Judgment, the parties shall work together to make copies of all family photos and cookbooks and distribute to each other; and
- The division of Household and Personal Goods shall occur upon the date of relocation of Wife from the Marital Residence.
5. Cash on Hand: Each party hereby represents and warrants that he or she has no more than One Hundred and no/100ths Dollars ($100.00) in cash on hand as of the date of his or her execution of this Agreement, including U.S. currency, money orders, cashiers’ checks, and the like, except as set forth in paragraph 3 above, and each shall retain that cash presently in his or her possession.
6. Life Insurance: Husband and Wife are each insured by a term life insurance policy through USAA, with no cash value;
- Upon the date of Judgment, Wife shall immediately become responsible for payment and maintaining her policy as well, the beneficiary designation for Wife’s life insurance policy is subject to change at her sole discretion;
- Upon the date of Judgment, Husband shall immediately become responsible for payment and maintaining his policy as well, the beneficiary designation for Husband’s life insurance policy is subject to change at his sole discretion; and
- Each party shall execute and deliver to the other any and all documents necessary, to confirm the conveyance of the entire right, title and/or interest in and to the above described life insurance policy awarded to each party.
7. Securities: Husband has an interest in a USAA Joint Mutual Fund that, as of September 30, 2018, had a value of $8,364.66. Wife shall receive fifty-percent (50%) of the marital portion of said USAA Joint Mutual Fund, plus gains and losses. The marital portion of the USAA Joint Mutual Fund shall be calculated from the date of Marriage to the date of Divorce Judgment. Beneficiary designation is subject to change through Husband’s sole discretion. Each party shall execute and deliver to the other any and all documents necessary, to confirm the conveyance of the USAA Joint Mutual Fund, as described by the terms herein. Any fee related to the division of this asset shall be assumed equally by the parties.
8. Retirement Accounts:
a. The parties possess a total of seven (7) retirement accounts, namely:
- Husband’s USAA Federal Savings Bank – Roth IRA, which as of September 30, 2018 had a balance of $123,456;
- Husband’s Prudential – IPFS Corporation 401(k) Plan, which as of September 30, 2018 had a balance of $123,456;
- Husband’s USAA Federal Savings Bank – IRA, which as of September 30, 2018 had a balance of $123,456;
- Wife’s ______________________________, which is of September 30, 2018 had a balance of $123,456;
- Wife’s ______________________________, which as of September 30, 2018 had a balance of $123,456;
- Wife’s ________ – Mutual Fund Roth IRA, which as of September 30, 2018 had a value of $123,456;
- Wife’s ________ – Mutual Fund IRA Rollover, which as of September 30, 2018 had a value of $123,456;
c. The parties agree to add together the total value of all seven (7) retirement accounts with the balance as of the date of Judgment and agree that each party shall receive fifty percent (50%) of the total value off all seven (7) retirement accounts. To facilitate the division, each party shall keep the accounts listed in his and her name own name, only actually dividing Husband’s USAA Federal Savings Bank – IRA. Husband shall transfer the amount necessary to Wife from Husband’s USAA Federal Savings Bank – IRA within a timely manner, but no later than three (3) months past the date of Judgment to equalize the division of retirement accounts. Gains or losses shall be applied to the division of Husband’s USAA Federal Savings Bank – IRA as of the date the division occurs. Wife shall be named as the Alternate Payee and Husband shall be named as the Participant. The parties shall cooperate fully to accomplish this conveyance of funds from Husband to Wife. Any fee related to the division of this asset shall be assumed equally by the parties.
9. Future Inheritance The parties acknowledge that Wife may have a future interest in inheritance from ______________ which will remain Wife’s separate, non-marital property.
10. All Property Divided The Parties agree that to the best of his or her knowledge there remains no other or further property to be divided by the Court and that all property has been divided between them pursuant to the terms of this Agreement. Each party represents and warrants that to the best of his or her knowledge that he or she has no interest in any property not specifically mentioned herein and that there is no indebtedness or other liability associated with the property allocated to the other except as identified herein.
- The parties agree that Husband has no debt in his sole, individual name;
- The parties agree that Wife has one (1) debt in her sole, individual name, to wit: Nelnet, Account _________, which as of November 19, 2018 had a balance of $123,456. Wife shall assume and hold Husband harmless for any claim arising from her Nelnet student loan and Wife agrees to indemnify, defend, and hold Husband harmless from the same;
- The parties have one (1) joint credit card, which is a USAA Visa, ending in #____. As of the date Wife relocates from the Marital Residence, the parties shall equally divide the debt on the USAA Visa credit card among themselves and agree to work with one another to accomplish this goal. Further the parties agree that as of the date Wife relocates from the Marital Residence, the parties shall no longer use the USAA Visa credit card and may open his or her own individual credit cards;
- If one or both parties opens his or her own credit cards or incur his and her own individual debt after the date Wife relocates from the Marital residence, Husband and Wife shall be solely responsible for his and her own individual debts, holding the other harmless;
- The parties shall within thirty (30) days hereof terminate all charge or credit accounts that were established jointly, if any still remain; and
- The parties represent and warrant to the other that they have not incurred any other debts or obligations other than those set out hereinabove. If either party has incurred such debts or obligations, he or she shall be solely responsible for them; and if the other party is called upon to make any payment or contribution toward the same, the responsible party shall indemnify and hold the other party harmless from any obligation thereon.
Non-Compliance or unreasonableness or delay or harassment or not complying with any clause can result in an award of attorney fees against the non-complying or unreasonable party as deemed appropriate by the Court.
Upon the date of Judgment, neither party shall be obligated to maintain any type of health insurance plan for the benefit of the other party. Presently the parties maintain separate health insurance policies.
MAIDEN NAME RESTORATION
It is Wife’s desire to change her name back to her maiden name of _____________.
The parties agree to divide the expense of mediation 50/50. If in the event, one or both parties hire legal counsel, Husband and Wife shall each be responsible to pay his and her own attorney’s fees and costs incurred herein.
Each party warrants that as of the date of signing this agreement, he or she has no property or interest in property other than the items described herein and that these items constitute a full, total, complete current and accurate disclosure of all property and interests in property of any kind or nature, whether legal or equitable, presently owned by or standing in whole or in part in the name of, or being held for the benefit of that party.
The failure to disclose an asset worth more than $500.00 shall be deemed to be material and shall entitle the other party to apply to the court for appropriate relief. The failure to disclose any property interest that is subsequently discovered by the other party shall entitle the finding party to the award of one-hundred percent (100%) of that undisclosed property interest, and to that party’s reasonable costs and attorney’s fees in uncovering the property (“finders keepers”).
OPPORTUNITY FOR COUNSEL – VOLUNTARY EXECUTION
The parties acknowledge making this agreement of their free will and volition and that no coercion, force, pressure or undue influence was used against a party in making this agreement either by the other party or by anyone else. Both parties have ascertained and weighed all the facts and circumstances likely to influence their judgment.
Each party understands that they had the right to conduct formal discovery to more accurately ascertain the details of their financial affairs, asset values, and/or debts. Each by signing this Agreement has deemed that formal inquiry and investigation unnecessary and each hereby forever waives that right. Each party understands that they had the right to a trial of their case one each of the issues that are contained in this Agreement, and that the results at trial may have been different than the settlement terms they have reached as embodied in this Agreement. Each understands that by signing this Agreement that they are forever waiving their right to a trial of their case with regards to their divorce and whether the agreement contained herein is fair just and equitable.
The parties acknowledge they had the opportunity to obtain independent advice of counsel of their own selection, including independence financial and tax advice and counsel.
Each party has read and fully understands and assents to all the provisions of this agreement. Each acknowledges that the terms of this agreement represent compromise and a negotiated settlement. There are no representations, warranties, covenants or undertakings other than those expressly set forth herein.
MUTUAL RELEASE OF MARITAL RIGHTS
Each of the parties releases the other party and his and her respective legal representatives, successors, and assigns, from any claim of any kind and, specifically relinquishes any right, title or interest in or to any of the earnings, accommodation, future investments, money or property of the other, including all property set aside to each party in accordance with the terms and conditions of this Agreement, any rights of inheritance in the estate of the other, which either may have heretofore, may now, or may have hereafter, except as otherwise provided in this agreement, any rights to act as executor or administrator of the will or estate of the other, any additional right which either party has or may have by reason of their marriage, including dower or curtesy, whether by statute, agreement, or common law, except these exceptions and provisions hereinbefore contained; it is specifically understood and agreed, however, that nothing herein contained in this paragraph will be construed as limiting the right of enforcement of the terms and provisions of this agreement by either party.
TERMS TO BE INCORPORATED IN DECREE
AND RESTRICTIONS ON MODIFICATION
By agreement of the parties, the terms of this Marital Settlement Agreement shall be incorporated by reference in detail in the Decree of Divorce.
The parties mutually agree that in the pending Petition for Divorce between the parties, that the rights and liabilities of each of the parties with respect to the property settlements, property transfers, allowances, orders, judgments, suit money, maintenance, alimony and attorney fees shall be controlled and completely and exclusively determined by the parties in accordance with the terms and provisions of this Agreement and that there are no such other agreements between the parties.
This Agreement is absolute and irrevocable and shall be considered to be contractual between them and binding upon the parties, their executors, administrators, heirs, devisees, beneficiaries, assigns or other legal representatives, where applicable, for the purpose of carrying out the terms hereof. If, at some later date, any modification hereof is agreed upon between the parties, the same shall reduced to writing, signed and acknowledged by them before it shall become effective.
The parties further specifically agree that the terms of this agreement are contractual and not decretal for purposes of any future modification. The only provisions subject to future modification by the Court are child support, custody and visitation.
Each of the parties hereby bind themselves, their heirs, successors, personal representatives and other legal representatives, to make execute and deliver to the other party any and all deeds of conveyance, bills of sale or any other instruments that may be necessary to carry out the terms of this Agreement. If either party shall fail to comply with the provisions of this paragraph, this agreement, itself, shall constitute an actual grant, assignment and conveyance of property and rights in such manner, and with such force and effect, as shall be necessary to effectuate the terms hereof.
The parties hereto each individually covenant and agree that this contract is not entered into by way of collusion, fraud or duress, but it is the sole agreement between the parties, each having the opportunity to confer with independent counsel of his or her choosing.
The parties hereafter shall live separate and apart from one another. Each party shall be free from the interference, annoyance, molestation, authority and control, direct or otherwise, of the other. Neither party by legal proceedings or otherwise shall endeavor to compel the other to cohabit with him or her or to enforce any restoration of the conjugal rights.
Breach of any of the provisions of this agreement shall not restore any rights of the other in any property, but the parties shall look solely to this Agreement for relief subject to approval, revisions, modification and supervision of the Court as provided in this Agreement. Husband agrees to pay the Wife’s reasonable attorney’s fees and damages should she incur any damages due to the Husband’s breach of this Agreement. Wife agrees to pay the Husband’s reasonable attorney’s fees and damages should he incur any damages due to Wife’s breach of this Agreement.
Each of the parties agree that they will deliver to the other party hereto simultaneously with the execution of this agreement all records or documents necessary to enable the party receiving the asset to determine the basis and holding period for gain or loss in accordance with the I.R.S. Temp. Regs. Section 1.1041-IT(a), A-2.
SUBMISSION TO THE COURT
In the event of a hearing on the Petition for Divorce as filed by the parties, this Agreement may be submitted to any Court during the hearing for such action as the Court may determine proper, and each of the parties hereto agree that they will request the Court enter its Decree in accordance with the terms and provisions herein.
LAWS OF _______
That this Agreement, together with all of the provisions thereof and including all exhibits, if any, shall be interpreted under the laws of the State _______.
IN WITNESS WHEREOF, the parties have hereto subscribed their names and executed this Agreement the day and year first above written.
STATE OF )
COUNTY OF )
BE IT REMEMBERED that on this ____ day of __________________, 2019 before me, the undersigned and a notary public in and for the County and State aforesaid, personally appeared _________________ who is known to me to be the same person who executed the above and foregoing Property Settlement Agreement, and acknowledged to me that he signed the same freely and voluntarily and knew the purpose for which that instrument was to be used.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my seal on the day and year above written.
My Commission Expires:
STATE OF )
COUNTY OF )
BE IT REMEMBERED that on this ____ day of __________________, 2019 before me, the undersigned and a notary public in and for the County and State aforesaid, personally appeared ______________, who is known to me to be the same person who executed the above and foregoing Property Settlement Agreement, and acknowledged to me that she signed the same freely and voluntarily and knew the purpose for which that instrument was to be used.
IN WITNESS WHEREOF I have hereunto set my hand and affixed my seal on the day and year above written.
My Commission Expires:
- Parenting Plan
Child custody mediation is a process in which parents work together to develop a plan for parenting their children after divorce with the help of a neutral 3rd party. … The mediation process is one in which parents work together to devise a parenting plan that is mutually acceptable to both parents. By working together in mediation to develop a parenting plan, the participants can avoid the battles which are so damaging in an adversarial process, and can include the children in the decision-making in a way that empowers them in a healthy way.
It is important for the participants to approach mediation with an open mind and a willingness to listen. Parents who are open and listen to the mediator and their ex-spouse are the ones who are able to reach a settlement and develop a mutually satisfactory parenting plan. Those who believe there is only one solution to custody and visitation issues are usually fairly stubborn and generally refuse to compromise. When a mediator comes across a stubborn participant, many tools will need to be used which include attempts to expand the pie, discuss interests versus positions, and potentially caucus, when discussing sensitive child issues.
Mediation usually breaks down when parents argue about the “he said – she said” issues between them. This is not a place to re-hash the marital problems but a place to solve parenting problems after divorce. Ensure the parties avoid labeling.
Finally, bring a sense of balance and humor. At times during mediation, things get tense. Maintain a perspective that balances the participant’s desires and the child’s needs. While this is your goal, it may not be easy. If things get tense, remind the parties that they are there for their children and not themselves, they need to be open to different ideas, keep working to satisfy the goals, and be willing to compromise to reach a peaceful solution on behalf of the children.
Below is a sample parenting plan to discuss during mediation and to use for memorializing the agreement. This sample parenting plan should be specifically tailored to the goals of the parties. Also remember to check your state and local rules to know what must be in your plan.
- Sample Parenting Plan
IN THE ____________ CIRCUIT COURT, ______________ COUNTY
STATE OF ___________
In Re the Marriage of: )
JANE DOE, )
SSN: XXX-XX-1234 )
) Cause No.
vs. ) Division
JOHN SMITH, )
SSN: XXX-XX-5678 )
JOINT PARENTING PLAN
The parties submit this Joint Parenting Plan for approval by this Court, in the above-captioned cause, in the belief that is sets forth that which is in the best interests of the children.
A. LEGAL CUSTODY
1. Custody: Father and Mother shall exercise joint legal custody of the minor children: _______________________ and _____________________.
2. Recognition of Child’s Best Interest. Recognizing the needs of the child for a continuing relationship with each parent, each parent shall exercise their best efforts to foster the love, respect and affections of the child toward the other parent and shall cooperate fully in implementing a relationship with the child that will give the child a maximum feeling of security. Each party shall accommodate the social and academic commitments of each child. Each party shall cooperate in order that the child shall have regular and frequent contact with both to the end that there shall be affection and respect between the child and the parents. Each party shall take no action which would demean the other. Mother and Father shall set aside any issues and feelings of mutual antipathy and marital discord toward each other for the sake of cooperating equally in the rearing of the child.
3. Routine and Minor Decisions: Each parent shall decide all routine and minor matters concerning the child’s welfare occurring while in that parent’s custody.
4. Confer Major Issues: The parties shall confer with one another in the exercise of the decision-making rights, responsibilities and authority regarding the child’s training, education and rearing, including but are not limited to: Choice or change of school, college, camp, or other comparable summer activity, special tutoring, music, art, dance and other cultural lessons, psychological or psychiatric treatment or counseling, doctors, dentists, surgeons, and all other material decisions affecting the health, education and welfare of the children.
5. Obligation to Keep Other Informed. Both Father and Mother shall keep the other informed as to their current residence address, the telephone numbers of their residences, their places of employment, and if either party travels out of town for any extended period of time, then such party shall notify the other of his or her destination and provide a telephone number where he or she may be reached. Each party shall notify the other of any activity such as school conferences, programs, etc., where parents are invited to attend. The presence of each at such functions shall be encouraged and welcomed by the other.
Each parent shall advise the other of any serious illness or injury suffered by the child as soon possible after learning of the same and shall give the other parent the details of said injury or illness and the name and telephone number of the attending physician, if any. Each shall direct all doctors involved in the care and treatment to give the other all information regarding any illness or injury if either requests the same.
6. Communication. The parties shall communicate directly with each other and not use a child as a messenger. The parents and the child shall have telephone access with each other at reasonable time and with reasonable frequency.
7. Notice of and Attendance at Special Events. Each parent shall provide the other with reasonable notice of all special events involving the child, especially those which parents may attend, such as school plays, extra-curricular activities, parent and grandparent’s day, etc. Both parents shall be welcome at school conferences, athletic events, performances, and other functions of the child.
8. Access to Medical Records. Both parties shall have complete access to the child’s medical, dental, vision and psychological records.
9. Medical Care – Routine. Each parent shall provide proper routine health and dental care to the child as needed while residing with that parent. Each party shall direct all doctors involved in any care and treatment of the child to give the other parent all information regarding any medical treatment or examination, if requested by a parent. Each parent shall promptly inform the other of any medical or dental condition of the child observed while residing with that parent.
10. Notice of Illness or Injury. Each parent shall advise the other of any medical/dental emergency or serious illness or injury suffered by the child when in his or her custody or during visitation as soon as possible after learning of the same and shall give the other parent the details of said emergency, injury or illness and the name and telephone number of the attending physician(s), if any. Each parent will inform the other of any medical care, treatment or examination by a health care provider including said provider’s name, address and telephone number.
11. Major Medical Decisions. Each parent shall inform the other in advance of any proposed medical or health care for the children. The parents shall consult with each other and agree prior to obtaining significant medical and dental treatment for the children. However, emergency care may by authorized without the other parent’s prior consent.
12. Medical Providers. The current treating doctors shall continue to treat the children unless both parties agree a change is necessary or insurance requires a change.
13. School Records. Both parents shall have complete access to the child’s school records. Each party shall obtain his and her own copies of the child’s school achievement, progress reports, grade cards, attendance records, and other communication from the school such as newsletters, notices of field trips, and special events.
14. School and Organized Activities: Each parent shall determine the children’s nonrecurring school, organized activities, and social events while residing with that parent. Each parent will communicate information concerning those activities to the other parent so that the parent can attend appropriate activities and so that the other parent is aware of activities such as invitations to social events, which will occur during the other parent’s time.
15. Dispute Resolution. It is the public policy of this State (Missouri Statute 452.375(4)) that frequent, continuing and meaningful contact with both parents is in the best interest of the child, and each parent is encouraged to participate in decisions affecting the health, education and welfare of their child and resolve disputes involving their child through Alternative Dispute Resolutions. Therefore, in the event of disputes concerning the child, the parties shall submit to mediation for resolution of the disputes as well as a determination as to the apportionment of the cost of mediation.
This provision does not preclude either party from filing a Motion to Modify pertaining to child custody and child support.
B. PHYSICAL CUSTODY AND SHARING OF PARENTING TIME.
1. Custody: Mother and Father shall exercise joint physical custody of the minor children. Mother’s residence address will be designated the children’s address for mailing and educational purposes. In the event the parties cannot agree, the following custody schedule shall be followed.
a. Weekend: Father shall exercise custody of the minor children every other weekend beginning immediately after he concludes his work day on Friday through and until Sunday at 6:00 pm.
b. Weekday: Father shall exercise custody of the minor children every other Wednesday beginning immediately after he concludes his work day through and until the commencement of his work day the following morning. Father’s Wednesday overnight visitation with the children shall take place during the week in which Father will not exercise custody of the children during the following weekend. For example:
c. Summer: Father and Mother shall each designate three (3) non-consecutive weeks each year, during the children’s summer school vacation, which he or she will have exclusive physical custody of the children and the regular or alternative exchange weekend schedule does not apply. Mother shall designate her vacation weeks in writing by May 1st, in odd-numbered years, and by June 1st, in even-numbered years, to Father. Father shall designate his vacation weeks in writing by June 1st, in odd-numbered years, and by May 1st, in even-numbered years, to Father. If the vacation schedule conflicts with the Holiday schedule, the Holiday schedule takes precedence.
d. Holidays and Special Days:
(1) Holidays and special days shall prevail over weekday/weekend custody as set forth in paragraph (3) above.
(2) Mother shall receive visitation with the minor children on Mother’s Day and her Birthday each year from 9:00 am to 8:00 pm, plus in accordance with the following Holiday schedule.
(3) Father shall receive custody of the minor children on Father’s Day and his Birthday each year from 9:00 am to 8:00 pm., plus in accordance with the following Holiday schedule.
|Holiday||Odd Years||Even Years|
|Martin Luther King Day (If school holiday, from 5pm Friday until 5pm Sunday)||Father||Mother|
|President’s Day (If school holiday, from 5pm Friday until 5pm Sunday)||Mother||Father|
|Spring Break I (First half of Spring Break from 5pm Friday until 5pm Wednesday)|
Spring Break II (Second half of Spring Break from 5pm Wednesday to 5pm Sunday)
|Easter Day (If Easter is not a part of Spring Break, then from 5pm Friday until 5pm Sunday)||Father||Mother|
|Memorial Day Weekend (5pm Friday until 5pm Monday)||Father||Mother|
|Independence Day (Noon on the 4th to noon on the 5th)||Mother||Father|
|Labor Day Weekend (5pm Friday until 5pm Monday)||Father||Mother|
|Halloween (4pm to 7pm)||Mother||Father|
|Thanksgiving I (First Half of Thanksgiving Break from 5pm Wednesday until 5pm Friday)|
Thanksgiving II (Second Half of Thanksgiving Break from 5pm Friday until 5pm Sunday)
|Christmas Vacation (5pm the last day of school until Noon on December 25th).||Mother||Father|
|Christmas Vacation (Noon on December 25th until Noon on January 1st)||Father||Mother|
|Child’s Birthday (9am to 8pm)||Mother||Father|
3. Telephone Access. Each parent shall inform the other of his or her residence address and telephone number, the address and telephone number of his or her place of employment, and in the event of extended out-of-town travel, the address and telephone number of his or her destination. The duty to update this information is a continuing obligation and shall be done within a reasonable time before any change. Each party shall allow reasonable telephone access with the child during normal waking hours during any period in which the child is with the other parent.
4. Transportation. Unless the parties agree otherwise, Father shall pick the children up from the children’s daycare provider, school, or Mother’s place of residence.
5. Changes to Schedules. To the extent possible, the parties shall accommodate the social and academic commitments of the child and shall cooperate to insure that the child shall have regular and frequent contact with each parent. In that regard, each party shall reasonably consider any requests made by the other party to change the scheduled custody or visitation periods previously agreed when a time request is made for the change by a party or the child. There shall be no restrictions or limitations on the child’s reasonable access to either parent. A parent requesting variance from the schedule shall notify the other parent as soon as possible, but no later than one week prior to the date of the change.
6. Flexibility. Father and Mother acknowledge that their respective work schedules may, from time to time conflict with this visitation schedule. The parties will use their best efforts and exercise reasonable discretion and flexibility in rescheduling visitation periods and/or providing make up days for visitation periods or days which could not be exercised because of said work schedule conflicts.
C. CHILD SUPPORT.
1. Amount of Child Support. Child support shall be paid by Father to Mother, retroactive to the date of filing, and pursuant to Supreme Court Rule 88.01 and Civil Procedure Form No. 14.
2. Taxes. Mother shall be allowed to claim ____________________ as a deduction for both federal and state income tax purposes every year, until such time as the child attains the age of twenty-one years or is emancipated, and Father shall execute all documents necessary, including the Internal Revenue Service Form 8332.
Father shall be allowed to claim _____________________ as a deduction for both federal and state income tax purposes every year, until such time as the child attains the age of twenty-one years or is emancipated, and Mother shall execute all documents necessary, including the Internal Revenue Service Form 8332.
3. Extraordinary Expenses of Child. Each parent shall pay fifty percent (50%) of the extraordinary expenses of the children including, but not limited to: school supplies, after school activities, sports and other extraordinary expenses that are incurred with prior discussion and by written agreement of said expense by both parties. If in the event the parties do not agree, the parent to enroll the child in the activity shall pay one-hundred percent (100%) of the associated expenses. Father/Mother shall reimburse Mother/Father for the percentage amount of said expenses so long as they are actually paid by Mother/Father. Except for good cause, no reimbursement of extraordinary expenses will be allowed unless Mother/Father submits proof of such expense such as a paid receipt, to Father/Mother in writing within thirty (30) days of the date said expenses were incurred.
4. Daycare Expenses. Each party shall pay fifty percent (50%) of the children’s daycare expenses. Father shall reimburse Mother his percentage, as identified above, within thirty (30) days of his receipt of proof of payment by Mother. Mother shall submit proof of payment such as a paid receipt to Father, in writing, within thirty (30) days of the date said expenses were incurred.
D. HEALTH INSURANCE.
1. Insurance Coverage. Father shall maintain a health benefit plan, if available through his employer, covering the minor children during any period in which the minor children qualify for coverage.
2. Non-Covered Costs. All health expenses, including medical, dental, orthodontic, optical, psychiatric, psychological, prescription, nursing, counseling, and other health-care expenses, incurred on behalf of the children and not paid by the health benefit plan shall be paid fifty percent (50%) by Father and fifty percent (50%) by Mother, if incurred pursuant to the health benefit plan to the extent that such “medical costs” are actually incurred and are not fully covered or not fully paid or reimbursed by the health benefit plan. The costs included are defined in Section 213 of the Internal Revenue Code (1987) or any section enacted in replacement of, in addition to, or in substitution thereof and as defined in Internal Revenue Regulation Section 1.213-1.
i. Each party shall be ordered to comply with the health benefit plan using health care providers and to timely submit claim information to the health benefit plan. If a party fails to comply with the policy requirements and this results in an additional unpaid cost, that party shall be required to pay all of the additional costs attributable to the failure to comply.
ii. If a parent incurs an expense to a health care provider that is not covered by the health benefit plan, that would have been covered, or covered at a more favorable rate, if a provider included in the plan had been used, then that parent shall pay seventy-five percent (75%) and the other parent shall pay twenty-five percent (25%) of the uncovered expenses.
a. Mechanism for Paying Costs of Non-Covered Care.
i. The parent obtaining the non-covered care shall provide a copy of each bill to the other parent within thirty (30) days of receiving said bill and submit covered expenses to the insurer for payment. If a co-payment is required at the time of service, the parent shall maintain the receipt for the co-payment amount.
ii. The parent shall also send the other parent a copy of the insurer’s Explanation of Benefits showing the amount paid or denied within thirty (30) days. Within thirty (30) days of receipt of said Explanation of Benefits, each parent shall pay his or her share of the amount owed to the medical provider. If the amount owed to the medical provider cannot be paid in full within thirty (30) days, each parent shall arrange payment for his or her share of the expenses.
iii. If a parent incurs attorney fees or expenses because the other parent failed to timely comply with the provisions herein regarding health care coverage, the defaulting party shall be required to pay the other parent’s attorney fees and costs in enforcing this provision and all interest accrued on the unpaid health care costs.
b. Insurance Claims. The parties shall cooperate in submitting insurance claims for services rendered for the minor child and each party shall promptly refund to the other any sums paid to him or her which are reimbursable to the other.
c. Insurance Information and Cards. Father shall provide Mother with written notice of the identity of all insurers and the identifying numbers of said insurance and a card (if available) to use in obtaining health care for the children.
- Memorializing the Agreement
At the conclusion of mediation, if an agreement is reached, the parties may request the mediator prepare either a formal document, sometimes referred to as a Marital Settlement and Separation Agreement or an informal document, memorializing all the discussion and terms. Of critical importance is the mediator’s ability to take detailed, comprehensive notes throughout the entire mediation session.
Many practitioners disagree about whether a mediator has a responsibility to prepare a written document memorializing the agreement and it is one question that many mediators feel strongly about. Obviously the benefit to the parties is that they leave with a sense of closure and certainty that a mediated, written agreement may provide. If the parties reach an oral agreement, but later an issue is in dispute, confidentiality provisions in some jurisdictions limit or prevent the those present from testifying about the agreement. Accordingly, the parties may feel like the mediation was a “waste of time” if they do not leave with a formal document in hand. A major concern of the mediator, however, includes his or her ability remain neutral when preparing a legal document. As you know, the words used in the final agreement may be advantageous or damaging to one party over the other, which is why it is so important for the practitioner to keep these concerns in mind when preparing the final agreement. Note, that some jurisdictions will view the drafting of terms as a conflict of interest. Please check your state and local rules to determine your jurisdiction’s view of memorializing the agreement.
- Follow Up
At the conclusion of mediation, it is important to follow up with the participants. First and foremost it signals care, a desire to succeed, it signals your realism, and is signals opportunity. “Fine tuning an agreement or making adjustments based on lived experience is not a sign of failure but of maturity. By following up you are creating an opportunity for the participants to trouble shoot and consolidate lessons.”
A reasonable follow up period of time is typically thirty (30) to forty-five (45) days after the completion of mediation. You may either check in by phone or email. Some practitioners go so far as to conduct a follow up, in-person meeting. It is the goal of the mediator during the follow up to establish rapport through reflective listening, validate emotions, and “…explore whether it is possible to reframe any frustration as care, disappointment as commitment, and anxiety as courage.”
Once the participants are ready to open up, you may consider the following questions:
- What aspects of the agreement you reached have been working well?
- What have you done differently since reaching the agreement?
- What has the other person done differently since reaching the agreement?
- What aspects of the agreement are causing frustration/disappointment/anxiety?
- Have you been following the terms of your new agreement?
- Have you been meeting regularly as proposed?
- When last did you look at the agreement?
During this meeting, participants may share a circumstance that has been challenging and may conduct additional skill building. They get to replay the situation and with some supportive coaching and encouragement, see that it could have worked out differently.
- STANDARDS OF PRACTICE
A family mediator shall recognize that mediation is based on the principle
of self-determination by the participants.
- Self-determination is the fundamental principle of family mediation. The mediation process relies upon the ability of participants to make their own voluntary and informed decisions.
- The primary role of a family mediator is to assist the participants to gain a better understanding of their own needs and interests and the needs and interests of others and to facilitate agreement among the participants.
- A family mediator should inform the participants that they may seek information and advice from a variety of sources during the mediation process.
- A family mediator shall inform the participants that they may withdraw from family mediation at any time and are not required to reach an agreement in mediation.
- The family mediator’s commitment shall be to the participants and the process. Pressure from outside of the mediation process shall never influence the mediator to coerce participants to settle.
A family mediator shall be qualified by education and training to undertake the mediation.
- To perform the family mediator’s role, a mediator should:
- have knowledge of family law;
- have knowledge of and training in the impact of family conflict on parents, children and other participants, including knowledge of child development, domestic abuse and child abuse and neglect;
- have education and training specific to the process of mediation;
- be able to recognize the impact of culture and diversity.
B. Family mediators should provide information to the participants about the mediator’s relevant training, education and expertise.
A family mediator shall facilitate the participants’ understanding of what mediation is and assess their capacity to mediate before the participants reach an agreement to mediate.
- Before family mediation begins a mediator should provide the participants with an overview of the process and its purposes, including:
- informing the participants that reaching an agreement in family mediation is consensual in nature, that a mediator is an impartial facilitator, and that a mediator may not impose or force any settlement on the parties;
- distinguishing family mediation from other processes designed to address family issues and disputes;
- informing the participants that any agreements reached will be reviewed by the court when court approval is required;
- informing the participants that they may obtain independent advice from attorneys, counsel, advocates, accountants, therapists or other professionals during the mediation process;
- advising the participants, in appropriate cases, that they can seek the advice of religious figures, elders or other significant persons in their community whose opinions they value;
- discussing, if applicable, the issue of separate sessions with the participants, a description of the circumstances in which the mediator may meet alone with any of the participants, or with any third party and the conditions of confidentiality concerning these separate sessions;
- informing the participants that the presence or absence of other persons at a mediation, including attorneys, counselors or advocates, depends on the agreement of the participants and the mediator, unless a statute or regulation otherwise requires or the mediator believes that the presence of another person is required or may be beneficial because of a history or threat of violence or other serious coercive activity by a participant.
- describing the obligations of the mediator to maintain the confidentiality of the mediation process and its results as well as any exceptions to confidentiality;
- advising the participants of the circumstances under which the mediator may suspend or terminate the mediation process and that a participant has a right to suspend or terminate mediation at any time.
- The participants should sign a written agreement to mediate their dispute and the terms and conditions thereof within a reasonable time after first consulting the family mediator.
- The family mediator should be alert to the capacity and willingness of the participants to mediate before proceeding with the mediation and throughout the process. A mediator should not agree to conduct the mediation if the mediator reasonably believes one or more of the participants is unable or unwilling to participate.
- Family mediators should not accept a dispute for mediation if they cannot satisfy the expectations of the participants concerning the timing of the process.
A family mediator shall conduct the mediation process in an impartial manner. A family mediator shall disclose all actual and potential grounds of bias and conflicts of interest reasonably known to the mediator. The participants shall be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias or conflict of interest clearly impairs a mediator’s impartiality, the mediator shall withdraw regardless of the express agreement of the participants.
- Impartiality means freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all participants as opposed to any one individual.
- Conflict of interest means any relationship between the mediator, any participant or the subject matter of the dispute, that compromises or appears to compromise the mediator’s impartiality.
- A family mediator should not accept a dispute for mediation if the family mediator cannot be impartial.
- A family mediator should identify and disclose potential grounds of bias or conflict of interest upon which a mediator’s impartiality might reasonably be questioned. Such disclosure should be made prior to the start of a mediation and in time to allow the participants to select an alternate mediator.
- A family mediator should resolve all doubts in favor of disclosure. All disclosures should be made as soon as practical after the mediator becomes aware of the bias or potential conflict of interest. The duty to disclose is a continuing duty.
- A family mediator should guard against bias or partiality based on the participants’ personal characteristics, background or performance at the mediation.
- A family mediator should avoid conflicts of interest in recommending the services of other professionals.
- A family mediator shall not use information about participants obtained in a mediation for personal gain or advantage
- A family mediator should withdraw pursuant to Standard IX if the mediator believes the mediator’s impartiality has been compromised or a conflict of interest has been identified and has not been waived by the participants.
A family mediator shall fully disclose and explain the basis of any
compensation, fees and charges to the participants.
- The participants should be provided with sufficient information about fees at the outset of mediation to determine if they wish to retain the services of the mediator.
- The participants’ written agreement to mediate their dispute should include a description of their fee arrangement with the mediator.
- A mediator should not enter into a fee agreement which is contingent upon the results of the mediation or the amount of the settlement.
- A mediator should not accept a fee for referral of a matter to another mediator or to any other person.
- Upon termination of mediation a mediator should return any unearned fee to the participants.
A family mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge.
- The mediator should facilitate full and accurate disclosure and the acquisition and development of information during mediation so that the participants can make informed decisions. This may be accomplished by encouraging participants to consult appropriate experts.
- Consistent with standards of impartiality and preserving participant self-determination, a mediator may provide the participants with information that the mediator is qualified by training or experience to provide. The mediator shall not provide therapy or legal advice.
- The mediator should recommend that the participants obtain independent legal representation before concluding an agreement.
- If the participants so desire, the mediator should allow attorneys, counsel or advocates for the participants to be present at the mediation sessions.
- With the agreement of the participants, the mediator may document the participants’ resolution of their dispute. The mediator should inform the participants that any agreement should be reviewed by an independent attorney before it is signed.
A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants.
- The mediator should discuss the participants’ expectations of confidentiality with them prior to undertaking the mediation. The written agreement to mediate should include provisions concerning confidentiality.
- Prior to undertaking the mediation the mediator should inform the participants of the limitations of confidentiality such as statutory, judicially or ethically mandated reporting.
- The mediator shall disclose a participant’s threat of suicide or violence against any person to the threatened person and the appropriate authorities if the mediator believes such threat is likely to be acted upon as permitted by law.
- If the mediator holds private sessions with a participant, the obligations of confidentiality concerning those sessions should be discussed and agreed upon prior to the sessions.
- If subpoenaed or otherwise noticed to testify or to produce documents the mediator should inform the participants immediately. The mediator should not testify or provide documents in response to a subpoena without an order of the court if the mediator reasonably believes doing so would violate an obligation of confidentiality to the participants.
A family mediator shall assist participants in determining how to promote the best interests of children.
- The mediator should encourage the participants to explore the range of options available for separation or post divorce parenting arrangements and their respective costs and benefits. Referral to a specialist in child development may be appropriate for these purposes. The topics for discussion may include, among others:
- information about community resources and programs that can help the participants and their children cope with the consequences of family reorganization and family violence;
- problems that continuing conflict creates for children’s development and what steps might be taken to ameliorate the effects of conflict on the children;
- development of a parenting plan that covers the children’s physical residence and decision-making responsibilities for the children, with appropriate levels of detail as agreed to by the participants;
- the possible need to revise parenting plans as the developmental needs of the children evolve over time; and
- encouragement to the participants to develop appropriate dispute resolution mechanisms to facilitate future revisions of the parenting plan
- The mediator should be sensitive to the impact of culture and religion on parenting philosophy and other decisions.
- The mediator shall inform any court-appointed representative for the children of the mediation. If a representative for the children participates, the mediator should, at the outset, discuss the effect of that participation on the mediation process and the confidentiality of the mediation with the participants. Whether the representative of the children participates or not, the mediator shall provide the representative with the resulting agreements insofar as they relate to the children.
- Except in extraordinary circumstances, the children should not participate in the mediation process without the consent of both parents and the children’s court-appointed representative.
- Prior to including the children in the mediation process, the mediator should consult with the parents and the children’s court-appointed representative about whether the children should participate in the mediation process and the form of that participation.
- The mediator should inform all concerned about the available options for the children’s participation (which may include personal participation, an interview with a mental health professional, or the mediator reporting to the parents, or a videotape statement) and discuss the costs and benefits of each with the participants.
A family mediator shall recognize a family situation involving child abuse or neglect and take appropriate steps to shape the mediation process accordingly.
- As used in these Standards, child abuse or neglect is defined by applicable state law.
- A mediator shall not undertake a mediation in which the family situation has been assessed to involve child abuse or neglect without appropriate and adequate training.
- If the mediator has reasonable grounds to believe that a child of the participants is abused or neglected within the meaning of the jurisdiction’s child abuse and neglect laws, the mediator shall comply with applicable child protection laws.
- The mediator should encourage the participants to explore appropriate services for the family.
- The mediator should consider the appropriateness of suspending or terminating the mediation process in light of the allegations.
A family mediator shall recognize a family situation involving domestic abuse and take appropriate steps to shape the mediation process accordingly.
- As used in these Standards, domestic abuse includes domestic violence as defined by applicable state law and issues of control and intimidation.
- A mediator shall not undertake a mediation in which the family situation has been assessed to involve domestic abuse without appropriate and adequate training.
- Some cases are not suitable for mediation because of safety, control or intimidation issues. A mediator should make a reasonable effort to screen for the existence of domestic abuse prior to entering into an agreement to mediate. The mediator should continue to assess for domestic abuse throughout the mediation process.
- If domestic abuse appears to be present the mediator shall consider taking measures to insure the safety of participants and the mediator including, among others:
- establishing appropriate security arrangements;
- holding separate sessions with the participants even without the agreement of all participants;
- allowing a friend, representative, advocate, counsel or attorney to attend the mediation sessions;
- encouraging the participants to be represented by an attorney, counsel or an advocate throughout the mediation process;
- referring the participants to appropriate community resources;
- suspending or terminating the mediation sessions, with appropriate steps to protect the safety of the participants.
E. The mediator should facilitate the participants’ formulation of parenting plans that protect the physical safety and psychological well-being of themselves and their children.
A family mediator shall suspend or terminate the mediation process when the mediator reasonably believes that a participant is unable to effectively participate or for other compelling reasons.
- Circumstances under which a mediator should consider suspending or terminating the mediation, may include, among others:
- the safety of a participant or well-being of a child is threatened;
- a participant has or is threatening to abduct a child;
- a participant is unable to participate due to the influence of drugs, alcohol, or physical or mental condition;
- the participants are about to enter into an agreement that the mediator reasonably believes to be unconscionable;
- a participant is using the mediation to further illegal conduct;
- a participant is using the mediation process to gain an unfair advantage;
- if the mediator believes the mediator’s impartiality has been compromised in accordance with Standard IV.
B. If the mediator does suspend or terminate the mediation, the mediator should take all reasonable steps to minimize prejudice or inconvenience to the participants which may result.
A family mediator shall be truthful in the advertisement and solicitation for mediation.
- Mediators should refrain from promises and guarantees of results. A mediator should not advertise statistical settlement data or settlement rates.
- Mediators should accurately represent their qualifications. In an advertisement or other communication, a mediator may make reference to meeting state, national, or private organizational qualifications only if the entity referred to has a procedure for qualifying mediators and the mediator has been duly granted the requisite status.
A family mediator shall acquire and maintain professional competence in mediation.
- Mediators should continuously improve their professional skills and abilities by, among other activities, participating in relevant continuing education programs and should regularly engage in self-assessment.
- Mediators should participate in programs of peer consultation and should help train and mentor the work of less experienced mediators.
- Mediators should continuously strive to understand the impact of culture and diversity on the mediator’s practice.
RSMO § 435.014. Arbitrators, may not be subpoenaed – proceedings regarded as settlement negotiations, communications confidential.
1. If all the parties to a dispute agree in writing to submit their dispute to any forum for arbitration, conciliation or mediation, then no person who serves as arbitrator, conciliator or mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the arbitration, conciliation or mediation.
2. Arbitration, conciliation and mediation proceedings shall be regarded as settlement negotiations. Any communication relating to the subject matter of such disputes made during the resolution process by any participant, mediator, conciliator, arbitrator or any other person present at the dispute resolution shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such proceedings not otherwise discoverable or obtainable shall be admissible as evidence or subject to discovery.
88.02. Mediation Authorized
Any judicial circuit may elect to establish a mediation program for child custody and visitation disputes as provided in this Rule 88.
88.03. Mediation of Child Custody and Visitation – Mediation Defined
Mediation under this Rule 88 is the process by which a neutral mediator appointed by the court assists the parties in reaching a mutually acceptable agreement as to issues of child custody and visitation. The role of the mediator is to assist the parties in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise, and finding points of agreement. An agreement reached by the parties is to be based on the decisions of the parties and not the decisions of the mediator. The agreement reached can resolve all or only some of the disputed issues.
88.04. Mediation – When Ordered – Appointment of Mediator
(a) The court may order mediation of any contested issue of child custody or visitation, at any time, upon the motion of a party or the court’s own motion.
(b) No investigation and report will be ordered by the court during the pendency of the mediation.
(c) If the court orders mediation under Rule 88.04(a), then the mediator shall meet the minimum qualifications required under Rule 88.05.
(d) The court may appoint a mediator agreed upon by the parties. If the parties cannot agree or if the court does not approve the agreed-upon mediator, the court may select the mediator.
88.05. Mediation – Qualifications of the Mediator
(a) A mediator who performs mediation in a contested child custody matter pursuant to this Rule 88 shall be a person who has stated by affidavit that he or she:
- Is an attorney or a person who possesses a graduate degree in a field that includes the study of psychiatry, psychology, social work, counseling or other behavioral science substantially related to marriage and family interpersonal relationships; and
- Has received a minimum of twenty hours of child custody mediation training in a program approved by the court.
(b) The court may maintain a list of mediators meeting the requirement of Rule 88.05(a) or rely on such list maintained by a bar organization.
(c) In appointing a mediator, the court shall consider:
- The nature and extent of any relationship the mediator may have with the parties and any personal, financial, or other interests the mediator may have that could result in bias or conflict of interest; and
- The mediator’s knowledge of: (A) the Missouri judicial system and the procedures used in domestic relations cases, (B) other resources in the community to which parties can be referred for assistance, (C) child development, (D) clinical issues relating to children, (E) the effects of the dissolution of marriage on children, (F) family systems theory, and (G) mediation and conflict resolution.
88.06. Mediation – Duties of the Mediator
(a) The mediator in writing shall:
(1) Inform the parties of the costs of mediation;
(2) Advise the parties that the mediator does not represent either or both of the parties;
(3) Define and describe the process of mediation to the parties;
(4) Disclose the nature and extent of any relationships with the parties and any personal, financial, or other interests that could result in a bias or a conflict of interest;
(5) Advise each of the parties to obtain independent legal advice;
(6) Disclose to the parties’ attorneys any factual documentation revealed during the mediation if at the end of the mediation process the disclosure is agreed to by the parties;
(7) Ensure that the parties consider fully the best interests of the children and that the parties understand the consequences of any decision they reach concerning the children.
(b) The mediator may meet with the children of any party and, with the consent of the parties, may meet with other persons.
(c) The mediator shall make a written summary of any understanding reached by the parties. A copy of the summary shall be provided to the parties and their attorneys, if any. The mediator shall advise each party in writing to obtain legal assistance in drafting any agreement or for reviewing any agreement drafted by the other party. Any understanding reached by the parties as a result of mediation shall not be binding upon the parties until it is reduced to writing, signed by the parties and their attorneys, if any, and approved by the court. If any party is not represented, the mediator shall provide to the court the written summary of any understanding reached by the parties.
(d) The mediator may act as a mediator in subsequent disputes between the parties. However, the mediator shall decline to act as attorney, counselor or psychotherapist for either party during or after the mediation or divorce proceedings unless the subsequent representation, counseling, or treatment is clearly distinct from the mediation issues. The mediator may not subsequently act as an investigator for any court-ordered report nor make any recommendations to the court regarding the child care issues.
88.07. Termination of Mediation
- At any time after two hours of mediation either party may terminate mediation ordered under Rule 88.04.
- The mediator shall terminate mediation whenever the mediator believes (1) that continuation of the process would harm or prejudice one or more of the parties or the children or (2) that the ability or willingness of any party to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely.
(c) The mediator shall report the termination of mediation to the court. The mediator shall not state the reason for termination except when the termination is due to a conflict of interest or bias on the part of the mediator, in which case another mediator may be appointed.
(a) Mediation proceedings shall be regarded as settlement proceedings. With the exception of information released pursuant to subdivision 88.06(a)(6), any communication relating to the subject matter of such disputes made during the mediation by any participant, mediator, or any other person present at the mediation shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such proceedings not otherwise discoverable or obtainable shall be admissible as evidence or subject to discovery.
(b) No person who serves as a mediator, nor any agent or employee of that person, shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the mediation.
“The Model Standards define impartiality as “freedom from favoritism, bias or prejudice,” avoiding even the appearance of partiality. Additional comments instruct a mediator to maintain impartiality in respect to the participants’ “personal characteristics, background, values and beliefs, or performance at a mediation, or any other reason.” The Model Standards provide fairly straightforward guidance, yet leave room for interpretation, thereby acknowledging the flexible nature of the mediation process.”
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.
- Although party self-determination for process design is a fundamental principle of mediation practice, a mediator may need to balance such party self-determination with a mediator’s duty to conduct a quality process in accordance with these Standards.
- A mediator cannot personally ensure that each party has made free and informed choices to reach particular decisions, but, where appropriate, a mediator should make the parties aware of the importance of consulting other professionals to help them make informed choices.
- A mediator shall not undermine party self-determination by any party for reasons such as higher settlement rates, egos, increased fees, or outside pressures from court personnel, program administrators, provider organizations, the media or others.
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.
- 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.
- A mediator should neither give nor accept a gift, favor, loan or other item of value that raises a question as to the mediator’s actual or perceived impartiality.
- A mediator may accept or give de minimis gifts or incidental items or services that are provided to facilitate a mediation or respect cultural norms so long as such practices do not raise questions as to a mediator’s actual or perceived impartiality.
- If at any time a mediator is unable to conduct a mediation in an impartial manner, the mediator shall withdraw.
STANDARD III. CONFLICTS OF INTEREST
A. A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation. A conflict of interest can arise from involvement by a mediator with the subject matter of the dispute or from any relationship between a mediator and any mediation participant, whether past or present, personal or professional, that reasonably raises a question of a mediator’s impartiality.
- A mediator shall make a reasonable inquiry to determine whether there are any facts that a reasonable individual would consider likely to create a potential or actual conflict of interest for a mediator. A mediator’s actions necessary to accomplish a reasonable inquiry into potential conflicts of interest may vary based on practice context.
- A mediator shall disclose, as soon as practicable, all actual and potential conflicts of interest that are reasonably known to the mediator and could reasonably be seen as raising a question about the mediator’s impartiality. After disclosure, if all parties agree, the mediator may proceed with the mediation.
- If a mediator learns any fact after accepting a mediation that raises a question with respect to that mediator’s service creating a potential or actual conflict of interest, the mediator shall disclose it as quickly as practicable. After disclosure, if all parties agree, the mediator may proceed with the mediation.
- If a mediator’s conflict of interest might reasonably be viewed as undermining the integrity of the mediation, a mediator shall withdraw from or decline to proceed with the mediation regardless of the expressed desire or agreement of the parties to the contrary.
- Subsequent to a mediation, a mediator shall not establish another relationship with any of the participants in any matter that would raise questions about the integrity of the mediation. When a mediator develops personal or professional relationships with parties, other individuals or organizations following a mediation in which they were involved, the mediator should consider factors such as time elapsed following the mediation, the nature of the relationships established, and services offered when determining whether the relationships might create a perceived or actual conflict of interest.
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 competence. A person who offers to serve as a mediator creates the expectation that the person is competent to mediate effectively.
- A mediator should attend educational programs and related activities to maintain and enhance the mediator’s knowledge and skills related to mediation.
- A mediator should have available for the parties’ information relevant to the mediator’s training, education, experience and approach to conducting a mediation.
- If a mediator, during the course of a mediation determines that the mediator cannot conduct the mediation competently, the mediator shall discuss that determination with the parties as soon as is practicable and take appropriate steps to address the situation, including, but not limited to, withdrawing or requesting appropriate assistance.
- If a mediator’s ability to conduct a mediation is impaired by drugs, alcohol, medication or otherwise, the mediator shall not conduct the mediation.
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.
- If a mediator participates in teaching, research or evaluation of mediation, the mediator should protect the anonymity of the parties and abide by their reasonable expectations regarding confidentiality.
- A mediator who meets with any persons in private session during a 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.
C. A mediator shall promote understanding among the parties of the extent to which the parties will maintain confidentiality of information they obtain in a mediation.
D. Depending on the circumstance of a mediation, the parties may have varying expectations regarding confidentiality that a mediator should address. The parties may make their own rules with respect to confidentiality, or the accepted practice of an individual mediator or institution may dictate a particular set of expectations.
STANDARD VI. QUALITY OF THE PROCESS
A. A mediator shall conduct a mediation in accordance with these Standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency and mutual respect among all participants.
- A mediator should agree to mediate only when the mediator is prepared to commit the attention essential to an effective mediation.
- A mediator should only accept cases when the mediator can satisfy the reasonable expectation of the parties concerning the timing of a mediation.
- The presence or absence of persons at a mediation depends on the agreement of the parties and the mediator. The parties and mediator may agree that others may be excluded from particular sessions or from all sessions.
- A mediator should promote honesty and candor between and among all participants, and a mediator shall not knowingly misrepresent any material fact or circumstance in the course of a mediation.
- The role of a mediator differs substantially from other professional roles. Mixing the role of a mediator and the role of another profession is problematic and thus, a mediator should distinguish between the roles. A mediator may provide information that the mediator is qualified by training or experience to provide, only if the mediator can do so consistent with these Standards.
- A mediator shall not conduct a dispute resolution procedure other than mediation but label it mediation in an effort to gain the protection of rules, statutes, or other governing authorities pertaining to mediation.
- A mediator may recommend, when appropriate, that parties consider resolving their dispute through arbitration, counseling, neutral evaluation or other processes.
- A mediator shall not undertake an additional dispute resolution role in the same matter without the consent of the parties. Before providing such service, a mediator shall inform the parties of the implications of the change in process and obtain their consent to the change. A mediator who undertakes such role assumes different duties and responsibilities that may be governed by other standards.
- If a mediation is being used to further criminal conduct, a mediator should take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
- If a party appears to have difficulty comprehending the process, issues, or settlement options, or difficulty participating in a mediation, the mediator should explore the circumstances and potential accommodations, modifications or adjustments that would make possible the party’s capacity to comprehend, participate and exercise self-determination.
- If a mediator is made aware of domestic abuse or violence among the parties, the mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
- If a mediator believes that participant conduct, including that of the mediator, jeopardizes conducting a mediation consistent with these Standards, a mediator shall take appropriate steps including, if necessary, postponing, withdrawing from or terminating the mediation.
STANDARD VII. ADVERTISING AND SOLICITATION
A. A mediator shall be truthful and not misleading when advertising, soliciting or otherwise communicating the mediator’s qualifications, experience, services and fees.
- A mediator should not include any promises as to outcome in communications, including business cards, stationery, or computer- based communications.
- A mediator should only claim to meet the mediator qualifications of a governmental entity or private organization if that entity or organization has a recognized procedure for qualifying mediators and it grants such status to the mediator.
- A mediator shall not solicit in a manner that gives an appearance of partiality for or against a party or otherwise undermines the integrity of the process.
- A mediator shall not communicate to others, in promotional materials or through other forms of communication, the names of persons served without their permission.
STANDARD VIII. FEES AND OTHER CHARGES
- A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses and any other actual or potential charges that may be incurred in connection with a mediation.
- If a mediator charges fees, the mediator should develop them in light of all relevant factors, including the type and complexity of the matter, the qualifications of the mediator, the time required and the rates customary for such mediation services.
- A mediator’s fee arrangement should be in writing unless the parties request otherwise.
- A mediator shall not charge fees in a manner that impairs a mediator’s impartiality.
- A mediator should not enter into a fee agreement which is contingent upon the result of the mediation or amount of the settlement.
- While a mediator may accept unequal fee payments from the parties, a mediator should not allow such a fee arrangement to adversely impact the mediator’s ability to conduct a mediation in an impartial manner.
STANDARD IX. ADVANCEMENT OF MEDIATION PRACTICE
A. A mediator should act in a manner that advances the practice of mediation. A mediator promotes this Standard by engaging in some or all of the following:
- Fostering diversity within the field of mediation.
- Striving to make mediation accessible to those who elect to use it, including providing services at a reduced rate or on a pro bono basis as appropriate.
- Participating in research when given the opportunity, including obtaining participant feedback when appropriate.
- Participating in outreach and education efforts to assist the public in developing an improved understanding of, and appreciation for, mediation.
- Assisting newer mediators through training, mentoring and networking.
B. A mediator should demonstrate respect for differing points of view within the field, seek to learn from other mediators and work together with other mediators to improve the profession and better serve people in conflict.
17.01. Alternative Dispute Resolution Program – Establishment – Purpose – Definition
(a) Any judge by order or any judicial circuit by local court rule may establish an alternative dispute resolution program as provided in this Rule 17. It is the purpose of the Court through adoption and implementation of this Rule 17 to provide an alternative mechanism for the resolution of civil disputes, except those subject to Supreme Court Rules 88.02 to 88.08, by means of alternative dispute resolution procedures for disposition before trial of certain civil cases with resultant savings in time and expenses to the litigants and to the court without sacrificing the quality of justice to be rendered or the right of the litigants to jury trial in the event that a settlement satisfactory to the parties is not achieved through alternative dispute resolution.
(b) As used in this Rule 17, alternative dispute resolution programs include but are not limited to:
(1) “Arbitration,” a procedure in which neutral persons, typically one person or a panel of three persons, hears both sides and decides the matter. The arbitrator’s decision is not binding and simply serves to guide the parties in trying to settle their lawsuit. An arbitration is typically less formal than a trial, is usually shorter, and may be conducted in a private setting at a time mutually agreeable to the parties. The parties, by agreement, select the arbitrator or arbitrators and determine the rules under which the arbitration will be conducted;
(2) “Early neutral evaluation,” a process designed to bring together parties to litigation and their counsel in the early pretrial period to present case summaries before and receive a non-binding assessment from an experienced neutral evaluator. The objective is to promote early and meaningful communication concerning disputes, enabling parties to plan their cases effectively and assess realistically the relative strengths and weaknesses of their positions. While this confidential environment provides an opportunity to negotiate a resolution, immediate settlement is not the primary purpose of this process;
(3) “Mediation,” a process in which a neutral third party facilitates communication between the parties to promote settlement. A mediator may not impose his or her own judgment on the issues for that of the parties;
(4) “Mini-Trial,” a process in which each party and counsel present the case before a selected representative for each party and a neutral third party, to define the issues and develop a basis for realistic settlement negotiations. The neutral third party may issue an advisory opinion regarding the merits of the case.
(5) “Summary jury trial,” is an informal settlement process in which jurors hear abbreviated case presentations. A judge presides over the hearing, but there are no witnesses, and the rules of evidence are relaxed. After the “trial”, the jurors retire to deliberate and then deliver an advisory verdict. The verdict becomes the starting point for settlement negotiations among the parties.
(c) Each circuit is encouraged to develop other alternative dispute resolution programs that will meet the needs of the parties, the circuit and the community.
(d) All alternative dispute resolution processes shall be non-binding unless the parties enter into a written agreement as provided in Rule 17.06(c). A written agreement shall be binding to the extent not prohibited by law.
17.02. Notice of Alternative Dispute Resolution Services
(a) In each civil action to which the alternative dispute resolution program applies, a notice of alternative dispute resolution services shall be furnished to all parties to the action. The notice shall be provided to the party initiating the action at the time the action is filed. All responding parties shall receive the notice with the summons and petition. The notice shall advise parties of the availability and purposes of alternative dispute resolution services. Other means of providing notice may be designated by local court rule.
(b) In addition to the provisions of Rule 17.02(a), counsel shall advise their clients of the availability of alternative dispute resolution programs.
17.03. Referral, Notification and Appointment
(a) A civil action shall be ordered to alternative dispute resolution upon stipulation of the parties. A civil action may be ordered to alternative dispute resolution upon the motion of any party or by the court. Absent the parties agreeing to an alternative dispute resolution process, the court shall determine the most appropriate process.
(b) If counsel for any party, after conferring with their respective clients, all other attorneys, and unrepresented parties, conclude that referral to alternative dispute resolution has no reasonable chance of being productive, they may opt out by so advising the court, in writing, within thirty days before the deadline to begin the alternative dispute resolution. The matter shall not thereafter be referred by the court to alternative dispute resolution absent compelling circumstances, which shall be set out by the court in any order referring the matter to alternative dispute resolution.
(c) If the parties agree to participate in the alternative dispute resolution program but cannot agree upon the neutral, then the court shall select a neutral from individuals or organizations qualified under Rule 17.04.
(d) Nothing contained in this Rule 17 shall preclude the parties from agreeing:
(1) To participate in any alternative dispute resolution program independent of this Rule 17;
(2) On different neutrals than that selected by the court either before or after the entry of an order entered pursuant to this Rule 17;
(3) On a neutral not otherwise identified on any court maintained list.
(e) Each circuit shall adopt necessary local court rules assuring the impartiality of the neutral, allowing for the removal or withdrawal of the neutral, and providing for the method of, but not the rate of, compensation of all neutrals.
(f) Each circuit shall adopt such local court rules as shall be appropriate for the scheduling of disputes referred to the program.
17.04. Qualification of Individuals and Organizations
Any individual providing alternative dispute resolution services independently or through an organization under this Rule 17 shall have appropriate training or equivalent experience in conducting the type of alternative dispute resolution service the individual or organization provides. Appropriate training for mediators shall include at least sixteen hours of formal training. Appropriate training for individuals providing other services shall include at least four hours of formal training. The Missouri Bar shall determine the number of hours of formal training of the individual.
17.05. Status of Results
(a) Absent the written agreement provided in Rule 17.06(c), any award or evaluation shall be reported only to the parties and their lawyers and shall have no effect other than as a guide to the parties in resolving the lawsuit and shall be inadmissible in any court.
(b) The parties shall advise the court within ten days of the termination of the alternative dispute resolution process only that the parties were successful in resolving their dispute or that issues remain open and unresolved.
17.06. Confidentiality and Settlement
(a) An alternative dispute resolution process undertaken pursuant to this Rule 17 shall be regarded as settlement negotiations. Any communication relating to the subject matter of such dispute made during the alternative dispute resolution process by a participant or any other person present at the process shall be a confidential communication. No admission, representation, statement or other confidential communication made in setting up or conducting such process shall be admissible as evidence or subject to discovery, except that, no fact independently discoverable shall be immune from discovery by virtue of having been disclosed in such confidential communication.
(b) No individual or organization providing alternative dispute resolution services pursuant to this Rule 17 or any agent or employee of the individual or organization shall be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the alternative dispute resolution process.
(c) Settlement shall be by a written document setting out the essential terms of the agreement executed after the termination of the alternative dispute resolution process.
(d) An individual or organization providing alternative dispute resolution services pursuant to this Rule 17 or any agent or employee of the individual or organization may be called in an action to enforce the written settlement agreement reached following the conclusion of the alternative dispute resolution process for the limited purpose of describing events following the conclusion of the alternative dispute resolution process.
In an action referred to an alternative dispute resolution program, discovery may proceed as in any other action, and all motions regarding discovery disputes shall be ruled upon by the court as in any other action. Discovery may take place both before and after an alternative dispute resolution process held pursuant to this Rule 17.
Additional Miscellaneous Discussion – Ethics in Mediation
Mediator Neutrality – “Neutrality means the refusal to ally with, support, or favor any side in a dispute; “belonging to neither side nor party.” A mediator’s neutrality is her ability to be objective while facilitating communication among negotiating parties.’ Neutrality can be both transparent and opaque: Transparent because it operates on the basis of widely held assumptions about power and conflict, and opaque because it is exceedingly difficult to raise questions about the nature and practice of neutrality from within this consensus.”
Mediator Impartiality – “Impartiality means freedom from favoritism and bias in word, action and appearance. The key to this requirement is the mediator’s ability to serve all participants concurrently. A mediator must not exhibit any partiality or bias based on any party’s background, personal characteristics, or performance during the mediation. The role of impartiality should apply to all aspects of the mediation, including communication (both spoken and unspoken), the way questions are asked, and positions and interests are reframed, the use and arrangement of furniture, seating arrangements, and methods to greet the participants as they arrive for the mediation. Impartiality also has been applied to relational issues such as conflict of interest concerns between the mediator and any of the participants.”
Party Self-Determination – “Party self-determination is considered the “fundamental principle of mediation.” Party autonomy is evidenced not only by references to the word “self-determination” but also by a mediator’s responsibility to help parties reach a voluntary and informed decision. To achieve party autonomy, a mediator may provide information to the parties regarding the mediation process, raise issues, and help parties explore various options. The mediator must be cautious not to jeopardize her neutrality and impartiality. Likewise, she must be careful to the extent she is directive because many ethical standards of conduct specifically preclude a mediator from coercing parties to settle or otherwise exert undue influence.
A mediator can jeopardize party self-determination by raising issues or suggesting options, especially when done after the parties have agreed to a settlement, albeit one that appears unfair or one-sided.”
Various State Standards
- Minnesota Code of Ethics for Neutrals and the Montana Mediation Association Standards of Practice Ethical Guidelines for Full Members both define impartiality as “freedom from favoritism or bias either by word or action, and a commitment to serve all parties as opposed to a single party.
- Massachusetts simply defines “impartiality” as “freedom from favoritism and bias in conduct as well as appearance. Twelve other states incorporate similar definitions into their Standards.
- Michigan’s impartiality provision states: A mediator shall conduct the mediation in an impartial manner. The concept of mediator impartiality is central to the mediation process. A mediator shall mediate only those matters in which it is possible to remain impartial and even-handed. If at any time the mediator is unable to conduct the process in an impartial manner.
- Some states have vague descriptions of impartiality because they may require a mediator to maintain impartiality or conduct the mediation in an impartial manner. One example requires mediators to approach the mediation process in an impartial manner. If at any time mediators are unable to do so they should withdraw from the mediation process.
- Some Standards take a more thorough approach and do not commingle mediator impartiality with conflicts of interest. These Standards set forth separate provisions for impartiality and conflicts of interest.