The commitments the two of you make when you start mediation are specific and narrowly defined. Specifically, with most mediators you don’t commit to any number of sessions, you don’t pay in advance, and you don’t even commit to negotiate. Your only commitment is to accept the confidentiality of mediation. Here’s the Agreement to Mediate I ask clients to sign before beginning mediation.
This memorandum indicates our agreement for both of you to enter mediation with me, hoping to use the mediation process to agree on the issues surrounding your separation and divorce. We agree as follows:
1. I will act as a neutral facilitator to help both of you reach your own settlement. I will not make decisions about “right” or “wrong” or tell either of you what you should do.
2. I will not offer legal advice or provide legal counsel. You are both free to consult an attorney at any time during mediation to understand better your own legal interests, rights, and obligations.
3. Mediation is not psychotherapy or counseling, and it does not replace such services.
4. Both of you agree that the success of mediation depends on complete and honest disclosure of relevant information and documents to each other and to me. This includes providing to each other and to me all information and documents that usually would be available through the discovery process in a legal proceeding. If either of you fails to make such full disclosure, a court might rule later that the agreement resulting from mediation is not binding.
5. We intend to continue with mediation until we reach a full settlement of the issues surrounding your divorce, but all three of us agree that any party can withdraw from mediation at any time.
6. We have agreed to observe the following guidelines during mediation:
- Leave fault and blame aside. The focus of mediation is on the future, not the past. Accusations only hinder the process and are not relevant to the issues to be discussed in mediation.
- Accept responsibility for yourself. State what you want and need. Include your intent, reasons, and feelings. Don’t try to speak for your spouse. This helps facilitate the process.
- Communications with me about issues under negotiation must be in the presence of both of you. Please call me only for clarification of your next appointment time or of information needed for the next appointment, not for discussion of substantive issues.
- There may be times when I will call for a “caucus.” In a caucus, I will meet with each of you separately to clarify issues. The caucus is the only time during the mediation process that information can be confidential. If you share information with me in caucus, I won’t report it to the other spouse without your permission. Even in caucus, however, information that is substantive to the divorce must be shared with the other spouse if the mediation is to continue.
- I encourage you to view everything in your agreement as “written in sand” until you have resolved all the issues between the two of you. Divorce is complicated. There are many issues on which you and your spouse must agree. It will be easier for both of you to negotiate with confidence if you know you haven’t agreed to be bound to anything until you agree to everything.
- Please feel free to dress comfortably. Mediation is hard work.
7. During the mediation process, I will prepare successive drafts of various computer spreadsheets and a Draft Settlement Agreement and, in most cases whenever changes have been made, distribute copies to both of you at the end of each mediation session. At the conclusion of the mediation process, I will provide a copy of the Draft Settlement Agreement to both of you. Each party will be free to review the Draft Settlement Agreement with his or her attorney or other consultant before the agreement is placed in final form and signed.
8. You agree to pay me $200 per hour for time in sessions with you. I will charge for time outside sessions for time spent talking to either of you or to your attorneys. I will only charge for work time outside sessions if all three of us specifically agree to it in advance. You will pay money as necessary to bring your account to a zero balance by the end of each session. If either of you fails to appear for a scheduled mediation session, and neither of you has called to cancel the session more than 24 hours in advance, you will pay the full cost of the session.
9. The success of mediation depends, among other things, on honest and open communication. Accordingly, all three of us will treat all written and oral communications made in the course of mediation as privileged settlement discussions. To ensure confidentiality, we agree as follows:
- I will not reveal anything discussed in mediation without the permission of both parties, except that I may in my sole discretion report to the appropriate authorities any indication that either spouse or any other person is in danger.
- Neither of you will at any time, before, during, or after mediation, call me or anyone associated with me as a witness or subpoena or demand the production of any records with respect to the mediation. To the extent that either of you has any such rights, each of you hereby waives them.
- If at any time either of you calls me or anyone associated with me as a witness or subpoenas records of the mediation, I will resist disclosure. We agree that the party attempting to force such disclosure will reimburse me for my costs of resisting disclosure, including attorneys’ fees, and including payment for my time at the rate of $400 per hour.
We agree that each of us has read and understood this Agreement to Mediate and that we agree to be bound by it.