a dignified and compassionate approach to all your legal needs

THE LAW OFFICES OF

PAMELA J. PEDLOW, P.A.

MEDIATION


Mediation is an alternative way to address divorce and family issues outside of the court system. It is a private, confidential and non-adversarial service designed to resolve sensitive issues in a manner that is the least damaging to the family. We hope that you will explore using mediation to solve your divorce or family issues in the best interest of all parties.


~What is Mediation?


Mediation is a problem solving process in which a neutral and impartial third person acts to encourage and facilitate the resolution of a dispute. It is an informal and non-adversarial process intended to help you reach a mutually acceptable agreement where you both "win." Mediation is based on concepts of communication, negotiation, facilitation, and problem solving that emphasize self-determination, the needs and interests of the participants, fairness, procedural flexibility, confidentiality, and full disclosure.


~The Mediation Process


When mediation begins, the mediator will describe the mediation process and the role of the mediator. You will be advised that mediation is a consensual process, that the mediator is an impartial facilitator without authority to impose a solution, and that communications made during mediation are confidential. The mediator manages the mediation process and procedures. You can communicate privately with your attorney during mediation.


Sometimes there is an agreement that mediation proceed without attorneys present. If an agreement is reached and your attorney is not present at the mediation, your attorney has 10 days to review the agreement with you and advise you about the agreement. Although mediation is informal, make an effort not to interrupt. If you want to comment or make a statement, write it down and bring it up at the next opportunity. Do not make negative or mean-spirited remarks about any other person in the mediation conference. The mediator may stop the mediation conference at any time and may set times for follow up meetings. If, in the mediator's judgment, further mediation meetings would be appropriate, productive and likely to yield meaningful results, then mediation can continue beyond a single session. Don't forget that the problems and concerns that brought you to mediation occurred over a long period of time. A few hours may not be a realistic time frame to try to work through and resolve the issues.


If a party fails to appear without good cause at a mediation conference for which he or she had notice, the Court may award mediator and attorney fees and other costs against the participant who failed to appear. Make sure you attend scheduled mediation. If no agreement is reached during mediation, the mediator will report the lack of agreement to the Court without comment or recommendation. With the consent of the parties, the mediator's report may identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement. If an agreement is reached on any issue, the agreement must be put in writing, signed by the parties and their attorneys, if any and if present, and submitted to the Court unless the parties agree otherwise. If the attorney for any party is not present when the agreement is reached, the mediator must mail a copy of the agreement to the attorney within five days. That attorney has 10 days from the date the agreement was mailed to serve a written objection on the mediator, unrepresented parties and other attorneys in the case. If no objection is filed, the agreement is presumed to be approved by counsel and is filed with the Court by the mediator.


~Mediator's Role


The role of the mediator is to reduce obstacles to communication, assist in identifying issues, exploring alternatives, and facilitating voluntary agreements resolving the dispute. The ultimate decision making authority rests solely with the participants. A mediator will not determine who is "right" or "wrong." The mediator's job is to assist you in reaching your own resolution. The mediator cannot negotiate on behalf of any participant, give professional advice or represent any of the mediation participants. Everyone is free to, and encouraged to, consult with an attorney of his or her choice during mediation. Decisions made during mediation are to be made by the participants. The mediator is responsible for assisting you in reaching informed and voluntary decisions while protecting your right of self-determination. The mediator may not coerce or improperly influence any participant to make a decision or unwillingly participate in a mediation. The mediator may not intentionally or knowingly misrepresent any material fact or circumstance during the mediation. If, for any reason, a party is unable to freely exercise self-determination, the mediator must cancel or postpone the mediation. The mediator must promote awareness of the interests of persons affected by actual or potential agreements who are not represented at the mediation. For example, the interests of children, grandparents or other related persons may be affected by agreements reached in mediation. In raising awareness of the interests of others, however, the mediator should still respect your right to make your own decisions. The mediator may not advocate a particular position. A mediator may provide information that the mediator is qualified by training or experience to provide, consistent with standards of impartiality and preserving the party's self-determination. When a mediator believes a party does not understand or appreciate how an agreement may adversely affect legal rights or obligations, the mediator must advise the party of the right to seek independent legal counsel. A mediator may not offer a personal or professional opinion intended to coerce the parties, decide the dispute, or direct a resolution of any issue. The mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. The mediator may not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute. The mediator must maintain impartiality throughout mediation. Impartiality means freedom from favoritism or bias in word, action or appearance, and includes a commitment to assist all parties and not any one person. The mediator must be patient, dignified, and courteous during mediation. The mediator must conduct mediation in an even-handed, balanced manner. The mediator must promote mutual respect among the mediation participants throughout the mediation process and encourage the participants to conduct themselves in a collaborative, non-coercive, and non-adversarial manner. The mediator may not mediate a matter that presents a clear or undisclosed conflict of interest. A conflict of interest arises when any relationship between the mediator and the participants or the subject matter of the dispute compromises or appears to compromise the mediator's impartiality.


~Confidentiality


The mediator must maintain confidentiality in all information revealed during mediation except where disclosure is required by law. All oral or written communications in mediation are confidential and inadmissible as evidence in any subsequent legal proceeding, unless both parties agree otherwise. The reason for the rule is to encourage people to talk openly and honestly, without fear of something said in mediation being used against them. The mediator is permitted to meet and speak privately with any participant and his or her attorney. This usually happens when the mediator or an attorney or participant thinks it will help move the discussion toward a solution. This is called a "caucus." Information obtained during caucus may not be revealed by the mediator to any other mediation participant without the consent of the disclosing party.