Divorce is a time of change for families. Plans for the children, division of property and financial arrangements all need to be worked out. Divorce is also a time of great emotional upheaval. These changes and emotions can result in conflicts between family members. How these conflicts are resolved can influence a family’s adjustment to divorce.
For most people, conflict is frightening and stressful. On the other hand, conflict can result in the productive airing of differences and can lead to creative solutions that address the changing needs of all family members. Too often in the divorce process, family members feel like bystanders while lawyers, judges, and others work out these crucial and intimate issues. Even in the face of anger, fear and hurt, it is possible for people to negotiate an agreement which balances the interests of each family member and benefits everyone in the long run.
Mediation is one way for family members to resolve their own conflicts during and after divorce. The mediator, a neutral professional, helps participants clearly define the issues in dispute and tone down the communication process so a rational discussion can take place and agreements can be reached. The mediator does not make decisions for the family but helps the family make decisions that are in everyone’s best interest.
It is important to remember that family conflicts are natural and normal, particularly in light of the strong feelings related to divorce. Conflicts which linger over time can hinder a family’s adjustment to divorce. How conflicts are resolved can also affect the adjustment process. Settlements which are reached by one party winning and the other losing rarely last. That kind of resolution usually breeds additional conflict.
The mediation process redefines conflict as a family problem rather than one person’s problem. The emotions of divorce are effectively managed so that they do not hinder the communication process. Better communication leads to better agreements. Consequently, solutions are reached by the productive airing of grievances so that the needs of participants can be addressed and solutions found which will be satisfactory to everyone.
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Below is a full scope of the mediation process.
Participants in mediation understand, acknowledge and adopt the following statement of principles regarding mediation:
Mediation will be conducted in a spirit of cooperation, courtesy and respect.
The major criteria for decision-making are:
The needs of each family member.
Standards of fairness as agreed to by the spouses.
The available resources of the parties.
The marriage will be considered an equal partnership in which each spouse has a substantial right in the contribution of the other, whether as a homemaker and/or as a financial provider.
The Mediator is responsible for managing the process of mediation, and will conduct mediation in whatever manner most expeditiously permits full discussion and resolution of the issues.
The Mediator will not make decisions for you nor advise you as to what should or should not be decided on any issue.
Communications with the Mediator about mediation issues shall be in the presence of both spouses within a regularly scheduled mediation session, or in the case of telephone contacts, will be shared with both spouses.
Children may participate in mediation sessions at the discretion of the Mediator and with the concurrence of the parties.
The Mediator will interpret and apply these rules. If the Mediator determines that either spouse is unable to negotiate in his/her own behalf, or that either spouse is not making good faith efforts to mediate, the Mediator has the right to postpone or terminate mediation.
By undertaking mediation under these rules, Rita Ros-Planas and each spouse agree with each other as follows:
Mediation is a procedure for reaching settlement of a dispute either in litigation or potentially in litigation between you.
The private settlement of disputes through methods other than litigation is a well-established concept in common law. Mediation is one such method of dispute resolution. It is essential to the success of mediation to protect the confidentiality of statements made in the process of mediation. Therefore, in adopting these rules, you agree that neither of you may call either the Mediator or any officer or agent or staff member of the Mediator as a witness in any litigation of any description in which either of you 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 in such litigation of any records or documents or tape recordings made by the Mediator.
The foregoing exclusions 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.
Mediation conducted by Rita Ros-Planas shall come within the purview of her professional privilege.
The Mediator does not represent either of you, nor gives legal advice but may answer questions or legal issues and provide relevant legal information. You will need to obtain legal counsel of your own choice before, during and/or after you have reached an agreement.
The Mediator maintains a list of attorneys who are familiar with the mediation process. You may use these attorneys if you wish.
An impasse is defined as a situation in which the couple has failed to reach an agreement on one or more specific issues. An impasse may be declared when the couple and the Mediator have examined all information and options reasonably available for reaching settlement and are unable to reach agreement. Impasse may be declared by the Mediator or by either spouse. In the event of an impasse, the following options are available:
Arbitration. Both parties agree to abide by the judgment of the Arbitrator who will consider the options and render a decision concerning only the specific issues(s). The decision of the Arbitrator shall be full and final and binding upon the couple.
Referral to another mediator.
Referral to two attorneys from panel who can agree to present only the issues at impasse to a judge for resolution via judicial ruling.
The Mediator may indicate to you her concurrence or nonconcurrence with the agreement you have reached.
Concurrence indicates the Mediator’s judgment that the agreement appears to be substantially equitable and fair to each party. In case of nonconcurrence, the Mediator shall so state. Nonconcurrence shall in no way detract from the full force and effectiveness of the contract reached between you.
Mediation sessions are usually conducted bimonthly, but may be conducted more or less often as mutually agreed. Sessions will be held at a time and place designated by the Mediator. Sessions are normally one and one-half to two hours in length.
Charges are by the hour for mediation, with payment due at the time of each session. In addition, a deposit (or retainer) is required at the time a contract is signed. Time spent by the Mediator on administrative matters (i.e., preparing written materials, reviewing documents prepared by attorneys or other professionals, etc.) will be charged against the deposit at the same hourly rate. Any unused portion of the deposit will be refunded upon completion of the process. If the deposit balance reaches zero, an additional deposit may be required or payment due as billed.
A spouse who decides to cancel a mediation appointment shall notify the Mediator and the other spouse as soon as practicable .
The Mediator may cancel a session if either party fails to appear or arrives unprepared.
Provide information; Mediation Rules explained; Retainer Agreement
Answer client’s questions; Obtain basic information from clients; Review rules
Collecting and Sharing Data:
Share detailed financial information; Narrow issues; Refer to outside experts, as necessary
Create and explore options; Have participants begin to make decisions
Close off areas of agreement; Negotiate remaining issues
Drafting the Memorandum:
Draft memorandum; Check for completeness; Review with couple
Legal Processing and Final Agreement
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