Kirk C. Stange, Esq.

Serving St. Louis, MO

Law Professor at firm Stange Law Firm, PC

Serving St. Louis, MO

Mediation
is a helpful tool in assisting clients to come to a settlement agreement. The
process of mediation allows for both parties to openly discuss all of the
issues surrounding their family law case in order to make important decisions
voluntarily.[1]
During mediation a qualified mediator assists both parties to come to an
agreement by discussing different options for settlement and helping each party
to better understand the viewpoints of one another. Mediation sessions can be
joint sessions where both parties are present or private caucuses where the
mediator meets with each party individually. Unlike arbitration where the
ultimate decision is outside of the parties’ hands, mediation allows the
parties to come to an agreement together which leads to a more amicable
situation.

The
parties participating in mediation often select the mediator. Choosing a
qualified mediator is important. The parties should consult local resources
regarding whether or not there are special certifications available for family
mediators and ensuring that a mediator with the proper qualifications is
selected. Once a mediator is selected, each party needs to prepare for
mediation. This could include consulting their attorney or just mentally
preparing for the issues that need to be worked out. When consulting a client
who is participating in mediation, it is important to explain to them any legal
issues in the case and to have them understand the consequences involved if the
mediation fails. The attorney should also explain to their client what role
they will play in mediation, if any. In some mediations, the parties will have
their attorneys present. However, in many cases, their attorneys are not
present.

Prior
to the start of mediation each party should be aware of the ground rules and
what will be required of them during the mediation process. Some mediators have
rules where they are not involved at all with the case. Many mediators will have their own rules, but
the parties do have some say in the process. The attorney should discuss what
documentation the client should bring to the mediation sessions as well as
consult with the mediator for what they suggest to come prepared with to the
sessions. This might include pay stubs, W2 forms, health insurance forms, day
care bills, etc. Having the ground rules for the mediation in place, and in
writing, along with proper preparation by both parties prior to the start of
mediation will help ensure that the process is a positive one for your client. The
attorney should also assist their client in understanding whether or not what
is said in mediation is confidential, or what exceptions to confidentiality
might apply to avoid things being used in court if the parties fail to mediate
all of the issues in their case.

During
meditation, there are two types of common negotiation strategies. The first
one, “positional negotiation” involves both parties exchanging offers to get
the best results for themselves. The second type is called “interest-based
negotiation,” which involves the parties describing their interests and looking
for solutions that satisfy them both. At the completion of mediation the
parties may enter into a written separation agreement containing provisions for
the maintenance of either of them, the disposition of any property owned by
either of them, and the custody, support and visitation of their children. Terms
of the agreement set forth in the decree are enforceable by all remedies
available for the enforcement of a judgment, and the court may punish any party
who willfully violates its decree to the same extent as is provided by law for
contempt of the court in any other suit or proceeding cognizable by the court.

Supporting
Information:

Mediators
are guided by standards established and adopted by the American Bar Association.
Some important excerpts are as follows[2]:

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.

Standard II: Impartiality

A. A
mediator shall decline a mediation if the mediator cannot conduct it in an
impartial manner. Impartiality means freedom from favoritism, bias or
prejudice.

B. A
mediator shall conduct a mediation in an impartial manner and avoid conduct
that gives the appearance of partiality.

1. 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.

C. If
at any time a mediator is unable to conduct a mediation in an impartial manner,
the mediator shall withdraw.

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.

STANDARD
V. CONFIDENTIALITY

A. 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.

1. If the parties
to a mediation agree that the mediator may disclose information obtained during
the mediation, the mediator may do so.

2. 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.

B. A mediator who
meets with any persons in a private session during 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.

Rule 2.4- Lawyer Serving as a Third-Party Neutral[3]

(a) A lawyer serves as a third-party neutral
when the lawyer assists two or more persons who are not clients of the lawyer
to reach a resolution of a dispute or other matter that has arisen between
them. Service as a third-party neutral may include service as an arbitrator, a
mediator or in such other capacity as will enable the lawyer to assist the
parties to resolve the matter.

(b) A lawyer serving as a third-party neutral
shall inform unrepresented parties that the lawyer is not representing them.
When the lawyer knows or reasonably should know that a party does not
understand the lawyer’s role in the matter, the lawyer shall explain the
difference between the lawyer’s role as a third-party neutral and a lawyer’s
role as one who represents a client.

A minority of jurisdictions, eleven states and the
District of Colombia, have adopted the Uniform Mediation Act (“UMA”).[4]
The UMA protects privileged communications made during mediation from
disclosure, admissibility and from being discoverable.[5]
The majority of states have not adopted these rules. While most states have not
adopted the UMA, they have created rules to deal with mediation confidentiality.
Whether or not something discussed or produced during mediation is confidential
depends on the jurisdiction. For instance, the court in Hauzinger v. Hauzinger found that since New York has not adopted
the UMA that refusal of the lower court to quash a subpoena for the mediator to
testify was not an abuse of discretion despite the fact that information during
the mediation session might be divulged.[6]

Some jurisdictions have taken voluntary mediation
prior to litigation a step further by establishing local statutes
that allow
courts or mandate courts to order mitigation between the parties, especially in
cases involving child custody and visitation issues.[7] For
instance, jurisdictions in Arizona, California, Delaware, Florida, Kentucky,
Maine, Nevada, North Carolina, Oregon, Utah, and Wisconsin have established
mandated statutes for the courts to order mediation.[8] Other
jurisdictions like Louisiana give the courts authority to order mitigation, but
do not mandate it.[9] When the court orders the
parties to participate in mitigation, they are required to do so unless there
are extraordinary circumstances as provided by state statute or jurisdictional
rule.[10]




[1]American Bar Association, (Viewed
Feb. 13, 2015) http://www.americanbar.org/content/dam/aba/images/dispute_resolution/Mediation_Guide_Family.pdf

[2] Model
Standards of Conduct for Mediators (viewed March 2, 2015). http://www.americanbar.org/content/dam/aba/migrated/2011_build/dispute_resolution/model_standards_conduct_april2007.authcheckdam.pdf (Standards are not shown in full, consult the
Model Standards of Conduct for Mediators on the ABA’s website for the full standards.)

[3]Model
Rules of Professional Conduct Rule

2.4

[4]1 Mediation: Law, Policy and Practice § 8:15

[5] Uniform Laws Commission,
Mediation Act, (viewed March 4, 2015).
http://www.uniformlaws.org/Act.aspx?title=Mediation%20Act

[6]Hauzinger
v. Hauzinger
, 892 N.E.2d 849 (2008).

[7]Christy L. Hendricks, The
Trend Toward Mandatory Mediation in Custody and Visitation Disputes of Minor
Children: An Overview
, 32 U. Louisville J. Fam. L. 491, 492-93 (1994).

[8]Id. at 497.

[9]Id.

[10]Id.

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