Mediation In Family Law
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Cooperation Through Mediation
Mediation of custody and visitation conflicts involve a process of short term counseling and may be ongoing, with a specific aim of helping separated parents resolve the emotional issues which prevent them from reaching satisfactory agreements regarding their continuing relationship with their children. Recent research of Wallerstein and Kelly has confirmed a long held belief among professionals that frequent and continuing contact with two cooperating parents is in the best interests of the children of divorcing parents.
Some families reach their own solutions to custody and visitation with flexibility sufficient to allow for the changing needs of the children and the parents. Others, because of their personal dynamics and/or conflicted relationships, are unable to do so without professional assistance. This assistance fosters a problem solving process, which includes techniques of negotiation, education and counseling and is supportive to all family members. Association of Conflict Resolution
This material is provided by the Dads House Educational Center in Yahoo Groups, with over a decade of educating Divorced and Single Fathers on their Rights and Responsibilities as Parents. ©
Why Use A Mediator?
An uncontested divorce or paternity action need not require the hiring of two attorneys. Using a Certified Mediator, a detailed agreement can be developed. From there, you file it with the court, and set a hearing date. On that day the judge will swear both of you in, ask if you both agree to the terms set down in the document, than everyone signs it. Generally, there is a 30-60 day waiting period for the document to be recorded with the county and state registries.
The mediator will be a lawyer or paralegal, with specialized training and certification.. Each of you MUST pay half the fees. The fees could run from $200 to $1000, depending on the going rates in your area, and time spent on the document. Court fees could run $50 to $200, but if you are tight on money, you could request a waiver.
These are the items you NEED to cover in the document.
CUSTODY
- Soul Custody
- Joint Legal Custody
- Joint Physical Custody
- Bird Nest Custody
VISITATION
- How close do you the parents live to each other?
- How old is the child?
- How often?
- What specific weeks, or months?
- What specific holidays on in a list of years, do each parent get the children?
- What if the custodial parent wants to move out of state?
MEDICAL
- Who covers medical insurance?
- Who decides on treatment?
CHILD SUPPORT
- How much?
- Weekly, Bi-Weekly, or Monthly?
- How Long? Eighteen, High School, or End of College?
- Do you split the cost of college?
- What state(s) may they attend in?
- What is the minimum amount of college credit hours the child must take?
- Who gets the tax deductions)?
- What if the child gets pregnant? Does child support stop?
DEATH
- If the residential parent dies, who gets the child? Never assume anything.
Objectives Of Mediators
There is a consensus among mediators working with child custody problems on the overall objectives of mediation, although there is a spectrum of techniques and practices.
These objective include:
- Protecting the child from being caught in the middle of those conflicts which cause feeling of guilt, confusion and fear;
- Reducing parental disputes, enabling greater trust, cooperation and agreement;
- Helping parents understand and tolerate their value differences;
- Reaching a mutually acceptable agreement which includes a child's living arrangements and parental responsibilities.
Methods Of Mediation
Forms of mediation with divorced or unmarried parents range from the use of advisory attorneys to individual and team mediators. Mediators can be Attorneys, Paralegals, Mental Health Professionals, or Social Workers in mediation.
Some mediators only see parents jointly with no individual meetings allowed, while others may have a set number before arbitration, and/or determine the number of meetings by case.
Some mediators specialize in custody-visitation disputes only, while others do financial mediation. Others do both with referrals for tax considerations and other use of specialized expertise. Hence, the methods of mediation cover the waterfront, but the objectives are the same, that is to help the two parties involved reach a mutual agreement that both parties can try to make work.
Is Mediation Legal?
A very definite YES, mediation is a legal means of reaching a settlement out of court, not only for family court issues, but for just about any dispute that will be handled by a civil court. Most judges will sign as a court order any agreement that was mutually agreed to by the parties involved. The reasons are simple:
- It clears their docket and saves them time.
- It saves them from having to listen to testimony and making a decision on the testimony presented.
- The most important reason is the judges know that an agreed to decision by the parties involved has a greater chance of not being back in court than a decision ordered upon the two parties by the judge.
If That Logic Doesn't Make Sense To You,
Then Mediation Is Probably Not For You.
Some states, such as California, even go as far as require mediation for couples involved in a family law disputes. California Civil Code (Section 4607, Section 5, page 148), operative as of January 1, 1981, is an attempt at disentangling child custody disputes from legal and economic aspects of the process. This section of the code is commonly known as the California Mandatory Mediation Law. This law prescribes that:
"The purpose of such mediation proceeding shall be to reduce acrimony which may exist between the parties and to develop an agreement assuring the child or children's close and continuing contact with both parents after the marriage is dissolved. The mediator shall use his or her best efforts to effect a settlement of the custody or visitation dispute."
Perhaps some day other states will have the insight to adopt similar legislation, rather than continuing to promote the adversary system that currently prevails.
Benefits Of Mediation
With Respect To Custody Disputes??
A group of local mental health professionals, and attorneys have together affirmed "that mediation avoids unnecessary litigation, lightens the court and attorney's loads and more importantly, spares the children of unnecessary and destructive discord between their parents, facilitating the children's positive development."
The benefits of mediation to parents are:
- A greater chance of fairness
- Increased communications
- Taking time to come to understandings and agreements in keeping with changing family conditions.
- Learn to compromise where possible.
- Learn to separate economic from ongoing parenting issues.
By reaching practical parenting agreements, parents are helped to neutralize their anger. Financially, mediation costs less than litigation while still maintaining a role for attorneys in reviewing agreements and preparation for the court's review. (1) Please see the article "The Benefits Outweigh the Costs" by Jessica Pearson and Nancy Thoennes on the financial benefits of mediation to the parties involved. The article, on the following pages, is reproduced from the Winter 1982 issue of the publication FAMILY ADVOCATE with the permission of the American Bar Association.
Sample Mediation Agreement
MEDIATION AGREEMENT
THIS AGREEMENT is made between us, Jane Doe and John Doe, as PARTIES, and ******* as MEDIATOR.
WE AGREE THAT:
- It is our sincere intention and agreement to be honest, fair, and equitable throughout the mediation process and to fully and fairly disclose all information related to the subjects and issues in the settlement negotiations.
- Either party may terminate mediation at any time, subject to court order, if any.
- Mediation shall be conducted by one mediator. *********** shall serve as the administrator of the mediation process, and for such service shall be compensated as follows: __________ per hour per p arty for time spent in mediation sessions, __________ per hour per party for time spent outside of the sessions, and plus a single initial non-refundable administrative fee of __________. In addition, expenses for copies made for the parties, long distance phone, travel expenses, consultant fees, and extraordinary expenses, if any, will be paid by the parties.
- We understand and agree that legal advice and legal representation are not given in mediation.
- We acknowledge that we have had explained to us this agreement and the mediation Rules and Guidelines of the District Court of ******* County, ********, a copy of which has been furnished to each of us and is made a part of this agreement in ATTACHMENT "A."
- The welfare of the child or children (if any are involved) is paramount and the mediator may act on that premise.
- The attorney-mediator states that he has no t represented one o f the parties beforehand in any matter that is the subject of the mediation. Parties understand and agree that neither the mediator nor his agent may be subpoenaed or otherwise compelled to disclose any matter disclosed in the process of setting up or conducting the mediation or preparing a memorandum of proposed terms of agreement and parties waive their right to compel the mediator or his agents to disclose this material. Information is confidential and shall not be disclosed unless required by law or agreed in writing by all parties to be disclosed.
- The mediator will suspend or terminate the mediation if, according to the rules and guidelines attached, the mediator deems it appropriate.
THIS AGREEMENT is signed by us as PARTIES in mediation and by _________________, MEDIATOR this ____ day of __________, 19___.
What You Should Know
- Meet with your attorney to review issues you should address in mediation.
- Discuss the issues the other party may raise; ask your attorney how to answer these issues and for alternative solutions.
- Ask your attorney about the mediator's techniques (e.g., searching for common goals, focusing on the child, or role-playing)
- These are the main things you should focus on in mediation:
- The goal is to determine what is best for the child.
- To achieve the desired outcome, you must convince the other party and the mediator that your suggestions are truly in the child's best interest.
- You should be prepared to explain why the issues you want addressed in mediation are vital to the child's best interest.
- Mediate in good faith (no secret agendas).
- Mediation is not the place to make the other party look bad.
- You should not buy into the other party's hostility or accusations about issues unrelated to the child; You should tell the other party (in front of the mediator) that you there to talk about co-parenting, not why the marriage failed.
- If the parents have different perceptions about the child's wants, you should ask the mediator to meet with the child (assuming the mediator has not already announced plans to do so).
- If the child is old enough to understand, discuss your plans with the child so that the child feels like he or she is part of the process and is not being ignored. (This is particularly important for teenagers.)
- Be prepared to correct any misperceptions by the other party regarding the client's household, the needs of the child, or you r ability to parent.
- If you are anxious about the mediation process, consider role-playing the mediation with your attorney or someone else who has been through the process.
- Find out if information revealed in mediation is not confidential and may be reported to the court. Talk to your attorney on how to avoid topics that may prove detrimental (such as, "This topic is not relevant to the child.")./span>
- Take notes during mediation so you can give your attorney a written summary of important statements made by the other party, yourself, and the mediator.
- Do not to sign any documents produced during the mediation session until your attorney has reviewed them.
The Lawyer's Role
- Determine the identity of the mediator(s).
- Consider whether the mediator's experience is relevant to the issues in your case, e.g., a mental health professional for a case with complex psychological issues, a lawyer for a case with complex financial issues.
- Determine (from your own experience or by talking to others) whether the mediator has any biases that may be relevant to the case or a relationship with opposing counsel that could adversely affect your client. If so, seek to change mediators if that is possible.
- If the issues of the case are too complex to be addressed in the usual number of mediation sessions, tell the mediator beforehand.
- Ask the mediator whether all communications to him or her should be copied to opposing counsel and whether he or she will speak to you on the phone.
- If there are declarations, affidavits, or orders filed with the court that are important to the mediation, make sure they are made available to the mediator.
- Find out whether the mediator will be asking your client to sign any waivers or releases and advise the client accordingly.
- Be cautious about allowing your client to waive psychotherapist privilege (his or her own, or the child's).
- If necessary--if the client or other party is uncomfortable without it--develop a specific co-parenting plan that the parties can follow prior to mediation.
- Discuss the mediation process with the client. (See "Mediation: what the client needs to know" checklist [mediated].)
- If the mediator is a mental health professional who is not experienced at crafting agreements, seek to draft the final agreement yourself, or have your client present a detailed plan for co-parenting at the mediation session.
Rules And Guidelines
For Family Law & Related Mediation
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- Effect of Rules and Guidelines
The purpose of these rules is to assist you in reaching a settlement of the issues submitted for mediation. It is hoped that the rules and guidelines will protect the integrity and confidentiality of the mediation process. It is believed that the guidelines will assist you in examining relevant factors necessary for a full discussion o f the issues. It is up to you to determine a resolution of your conflict and the mediator will not use these rules other than to protect the integrity of the process and to ensure full discussion and analysis of relevant issues. - Agreement to Mediate
We shall have these rules as a part of the mediation agreement whenever the agreement provides or whenever you have agreed in writing that mediation shall be conducted by __________. These rules and any amendments shall apply in this form at the time the mediation is initiated. - Conduct of Mediation.
The mediation process may be conducted by the mediator(s) in whatever manner will most expeditiously permit full discussion and resolution of the issues. The mediator(s) are authorized to negotiate between you and to encourage you to settle each issue. - Concurrence of Mediator(s)
The mediator(s) may indicate to you their concurrence or non-concurrence with the settlement agreement reached. A written notation of the mediator(s) concurrence or non-concurrence may be made below your signatures on the memorandum of understanding of the settlement terms and shall be signed by the mediator(s). Concurrence indicates the mediator(s) judgment that the settlement appears to be substantially equitable and fair to each party. Non-concurrence shall in no way detract from the full force and effectiveness of the settlement contract to be reached between you. The mediator(s) shall have no duty to explain or justify non-concurrence beyond a general indication of the particular area or areas toward which their non-concurrence is directed. - Confidentiality of Mediation
By understanding the mediation under these rules, _____ _____ and the parties mutually agree with each other on these principles of confidentiality:
a. Mediation is a procedure for reaching settlement of a dispute either in litigation or likely to be in litigation between you.
b. Through the adoption of these rules you agree that neither of you, or none of you if more than two parties, may call either the mediator or any officer or agent of the mediator as a witness in any litigation of any description in which they are called upon to testify as to any matter regarding the mediation proceeding; and, in like manner, both of you shall be stopped from requiring the production of such a litigation of any records or documents or tape recordings made by the mediator.
c. The foregoing exclusion from evidence and exemptions of the mediator and parties from giving testimony or being called upon to produce documents shall apply also to the use of neutral experts and other professionals called upon by you in mediation under this agreement.
d. Mediations conducted by a professional mediator shall be considered settlement negotiations, shall come within the purview of his/her profession al privilege, and shall be kept confidential by terms of the contract.
e. The mediator will treat all information obtained from and about the participants throughout the mediation process as confidential, and will not voluntarily disclose this information, unless disclosure is necessary for the conduct of the mediation or is required by law, without consent of both parties. Disclosure is required by law in cases of child abuse.
f. For mediation to function well it is necessary that each person feel free and comfortable in bringing feelings, facts, and information forward for discussion or to assist in the negotiations. To help foster openness, parties waive their right to compel the mediator or mediator's agents to disclose information obtained from mediation.
g. If mediation was ordered by the court to resolve a domestic dispute relating to child custody and visitation, each party may refuse to disclose and prevent a witness from disclosing any communication made in mediation. How ever, the legal privilege to avoid or prevent disclosure of information does not apply to required child abuse reporting, crime committed in mediation, or expressed intent to commit a crime in the future. - Full Disclosure
Each person shall fully disclose in the presence of the other all information and writings, such as financial statements, income tax returns, etc. requested by the mediator an d all information requested by the opposite party if the mediator find such other disclosure is appropriate to the mediation process and may aid you in reaching a settlement. - Preparation of Budgets
The preparation of budgets by each of you is an essential part of the mediation process. If either of you fails or refuses to prepare a budget adequately reflecting his/her needs, the mediator shall have the duty to suspend mediation of these issues, or, at the mediator's discretion, declare an impasse. - Participation of Children and Others
Children or other person s having a direct interest in the mediation may participate in mediation sessions related to their interest with consent of the parties and the mediator. Without such consent, only the parties may be present or participate in mediation. The mediator may always meet with the children when the mediator thinks it is best to do so. - Transfers of Property
During the mediation process, neither of us will transfer, encumber, conceal, or in any other way dispose of assets except in the usual course of business or for the necessities of life. Transactions by either party in the regular course of business and for any other purpose affecting 10% or more of the total assets will require prior mutual agreement. - Drafting of Memorandum of Understanding
The mediator, at the conclusion of the sessions, shall draft a detailed memorandum setting forth the decisions agreed upon by you in mediation and describing the proposed terms of settlement and will attach factual documents. The memorandum shall contain background information about the parties and shall set forth the factual information relied upon by the parties in reaching settlement. The memorandum w ill be submitted by each of you to your attorneys who will review and implement your decisions as reflected in the memorandum. Any new issues raised by your attorneys shall be returned to mediation for further negotiations. - Legal Representation
The mediator, although he is a lawyer, is neither acting as attorney for, nor providing advice to, nor representation of, any party in mediation; and you agree that legal issues relating to our decisions in mediation will be referred to your attorneys which you might retain before, during, or after the process. You agree to obtain independent legal counsel of your own choice at the conclusion of the mediation process, if any contract or legal proceedings are to follow mediation. You understand that the mediator does not represent either or both of you.
After mediation and before a binding legal settlement agreement is made in order to avoid risk of defeating the agreement or of accidental or irreparable harm, legal representation is required and you each agree to retain counsel of your own choice to represent you. It is also suggested that you obtain legal counsel before and during the mediation process so that you may discuss legal issues with your own attorney before or between sessions as the negotiations continue.
Your consent to the mediation allows a lawyer ethically to act as mediator to mediate between you as a neutral third party in the dispute, but no attorney-client relationship exists between the mediator an d either or both of you in mediation. You understand that emotions affect negotiations and that your interests are or may be in conflict or potential conflict. The mediator recognizes this and will help you move gradually through negotiating the various issues which arise. - Amendment of Rules
The mediator reserves the right to amend these rules at any time, provided, however, such amendment shall not apply to existing controversies which are in mediation on the date of such amendment without consent of the disputants and the mediator. - Impasse
The mediator may declare an impasse at any time when in his/her judgment the agreement-making process is blocked or has halted and is not likely to proceed further. - Separate Sessions (Private Sessions, Caucuses)
It may be helpful to the mediation for the mediator to meet with each party separately. This is to allow each party to express things he or she may not feel comfortable expressing in the mediation joint session. The party in the private session may ask that information disclosed there be kept confidential from the other party. The mediator will either follow this request or will let the party know that it cannot be honored if mediation is to continue, giving the mediator or the party the option of terminating the mediation without disclosure of the information to the other party. If confidentiality is requested, the mediator may use the confidential information as deemed appropriate to the process but without disclosure to the other party or parties. - Meetings with Third Parties
The mediator may suggest that the parties consult with a third party, such as an accountant or an appraiser, to gather additional information to be brought back to the mediation session to permit informed negotiations. Parties agree to cooperate in this process. The mediator may consult with a third party with the prior consent of the parties. - Temporary Suspension or Termination by Mediator
The mediator may temporarily suspend or terminate the mediation if, in the judgment of the mediator, the parties cannot prudently reach an agreement without outside help, there is a known or potential conflict of interest of the mediator, there has not been fair and full disclosure, a party is unable or unwilling to participate in the mediation process, continuation would harm a party or the proposed agreement does not protect the best interest of the __________, or if the mediator believes the agreement does or will involve overreaching, duress, or unfairness.
Conclusion
In conclusion, a breakup is always painful, and negotiations and planning for life afterwards is not always easy. However, the mediator understands this will assist you in your effort so that it can be concluded as smoothly and economically as possible. - Effect of Rules and Guidelines
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candidaabrahamson
Feb 18, 2012 @ 11:12 am | delete
- As a mediator and one who's currently doing a series of entries on my blog about mediation, I found your practical, matter-of-fact, basic but highly informative piece helpful enough to: link to it on my blog, give it a squidkiss, and blog about it on twitter. My hope is that if more people know about mediation as it comes time to end their marriages, they might choose this option instead of the adversarial way--and a lens like this makes that hope all the more possible.
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candidaabrahamson
Feb 18, 2012 @ 11:12 am | delete
- As a mediator and one who's currently doing a series of entries on my blog about mediation, I found your practical, matter-of-fact, basic but highly informative piece helpful enough to: link to it on my blog, give it a squidkiss, and blog about it on twitter. My hope is that if more people know about mediation as it comes time to end their marriages, they might choose this option instead of the adversarial way--and a lens like this makes that hope all the more possible.
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The Mission of the Dads House Educational Center Groups is to teach Divorced & Single Fathers on their rights AND responsibilities to children. more »
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