Preparation
The parties should submit the previously provided mediation worksheet and all relevant pleadings twenty-four (24) hours in advance of any mediation.
If represented by counsel, the respective attorneys should submit a very brief memorandum of the issues and relevant facts.
Time
Depending on the number and complexity of the issues and the willingness of the parties to negotiate their respective issues, the process may be completed in as little as two (2) hours of commencement.
The parties may elect to either schedule an entire day of mediation in an attempt to settle all issues (marathon mediation), or they may schedule 1-2 hour mediation sessions over the course of several days, allowing time of reflection between issues. This is an individual’s preference and no way is more or less effective than the other.
Expectations
Each party should expect that they will be given the opportunity to provide the mediator with their own interpretation of the facts and their desired outcome. The mediator will listen to both parties and seek to interpret where the parties are in agreement and bring forth suggestions to determine resolution on items of disagreement.
Everyone should enter mediation with an open mind and without preconceived notions of leaving the mediation a “winner”. Mediation is a “give and take” process whereby all parties will have to negotiate.
Your mediator will not offer, nor will he supply any legal “advice”. He may offer legal knowledge of particular pertinent laws, codes and statutes. For example, the mediator will not offer either side with what he believes is a legal conclusion of their agreement, but he may refer to the relevant laws and statutes regarding such things as child support and community property division of assets; thereby informing the parties about the judicial procedure in determining these issues.
Prior to commencement of the mediation process each party will sign an agreement stating that they are entering this process with the intent of resolving issues between the parties, that they shall respect the mediation process and shall treat all parties involved with respect and dignity. The mediator will not permit the use of any intimidation, inappropriate language or behavior by one party towards the other.
Joint Mediation versus Caucus Mediation
The parties may meet together in one room with their respective attorney and the mediator (joint mediation), or may each be placed in separate rooms with their respective attorneys with the mediator traveling between the two rooms to establish an agreement (caucus mediation).
Although both mediation techniques are equally effective, joint mediation is less time consuming. However, in high conflict cases, caucus mediation is highly recommended.
Outcome
Ideally, the parties submit to mediation for the purpose of resolving their legal issues without the necessity of court hearings or other judicial intervention.
When an agreement is reached, the parties will have one of two options. They may enter into a mediation agreement, detailing their agreement of the issues and provide same to their attorneys for drafting of an appropriate judgment, or they may elect to have their agreement memorialized in a consent judgment, therein mutually agreeing to their resolution of the issues; with same to be presented to the Court for filing and ratification. Should the parties mutually agree to have the issues memorialized in a consent judgment, they shall each execute “binding mediation” agreement; stating that they understand their agreement is being made into a legally enforceable judgment.
Parties who enter into mediation do not forfeit any legal rights or remedies. If the mediation process does not result in settlement, each side can continue to enforce their rights through appropriate court.
Confidentiality
Each party will be required to sign a confidentiality agreement before commencing the mediation process. This agreement ensures that each party will be open and honest about their interpretation of the facts and what they believe is important for the mediator to know. They agree that the mediator shall never be called or subpoenaed to testify at any hearing regarding any aspect of their mediation process.
The parties further agree that they shall never divulge any of the conversations had during the mediation process with any third party or any court.
The Mediator
The parties should expect that the mediator will be fair and equal to both parties. He will provide equal information to everyone involved and will take a neutral position on the outcome of the issues.
