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Mediation is a method used by people to work together toward the resolution of a dispute between them. The following is an overview of the mediation process: 1. The Purpose of Mediation The purpose of the mediation process is to enable people involved in a dispute to resolve themselves the issues between them in a creative, constructive, and proactive way, minimizing any adversarial contest. It is not intended to avoid the need for legal advice or to entirely sidestep the legal process. 2. The Role of the Mediator The role of the mediator is to assist the participants in their attempt to resolve their dispute or settle their issues. The mediator will provide a setting for you, the participants, to meet and propose basic "ground rules" for the process to keep the participants focused, assist in clarifying issues and exploring options or solutions, and outline any agreement reached. The mediator will remain neutral in all contacts and will not further the interests of one participant over the other. Being neutral, it is not the role of the mediator to act as an attorney for either participant or advise or counsel either participant. 3. The Mediation Process It is anticipated that the mediation process will require three to five mediation sessions of one to two hours each, though the number of the sessions and their length may vary depending upon the circumstances of the participants and the complexities of your dispute. At all sessions, both participants will be present unless it is mutually agreed that it would be appropriate for the mediator to meet with each participant separately. No other person shall be present at the mediation sessions unless it is mutually agreed otherwise. At the sessions, you will work together with the help of the mediator to develop options and negotiate toward agreement. If it is thought to be helpful, the mediator may, if specifically agreed upon by the participants, contact the participants' attorneys, counselors, accountants, or other experts to discuss the specific concerns of that participant. The mediator will briefly summarize each session in a written memorandum given to both participants. At the request of the participants, the mediator will prepare a formal draft memorandum summarizing the agreements reached for the review of the participants and their attorneys. 4. Full Disclosure The mediation process requires the participants to fully disclose to each other information, of whatever nature, to the same extent as the disclosure would be required during a legal proceeding. In the context of an action for divorce, this includes a disclosure of income, assets, and liabilities. If either participant feels that full disclosure would not be in his or her best interest, the mediation process cannot take place. Any agreement reached, even if it is incorporated into a Decree of Divorce or other order, may be set aside by the court at a later time if full disclosure is not made. 5. Good Faith The success of the mediated agreement depends upon the good faith of both participants. Both participants should, to the extent practical, maintain and preserve their assets, refrain from materially negatively affecting their net worth, and, if children are involved, the participants need to promote the children's respect for and relationship with the other participant and extended family members. 6. Confidentiality In order to be effective, the mediation sessions must be confidential. Confidentiality creates an open atmosphere which will encourage the creative exchange of ideas and options. All mediation sessions are settlement discussions and negotiations and the mediator will not testify for or on behalf of either participant without court order. No information provided to the mediator by either participant in private caucus will be provided to the other participant without express consent of the disclosing participant. The participants agree that in the event the mediator is called to testify at any court proceeding or is requested to provide documents related in any way to the mediation, the participant or participants requiring the information from the mediator will pay all attorney fees, costs, and any other related expenses incurred by the mediator in opposing a subpoena or other court order for the production of documents or the mediator's testimony, as well as the time of the mediator spent in such pursuits at the rate of $175 per hour. The mediator will disclose to the appropriate authorities, however, any allegations of abuse or neglect of an elderly or incapacitated person or of a child presently under the age of 18 years and any threats made by the participants, or either of them, to cause physical harm to any person. 7. Independent Legal Counsel The mediator has to be neutral and keep all information and documents confidential and secure for the participants, as discussed above. To that end, the mediator cannot represent, counsel, or advise one participant, and as legal counsel can only represent one side of a dispute. It is or should be clear that because the mediator's role is not that of an advocate for either participant, both participants are strongly encouraged to obtain separate legal counsel and to consult with their counsel throughout the mediation process if they have questions or need assistance that requires such legal counseling or advocacy. However, having independent legal counsel, if that is what is desired by one or both of the participants, does not alleviate the agreement and requirement to mediate openly and honestly with full disclosure as discussed in this document. So having independent legal counsel will not allow one participant or another to hide things or to gain any sort of advantage in the mediation process over the other participant. 8. Withdrawal From Mediation Either participant, or both, may withdraw from the mediation process at any time. The mediator may also withdraw if it appears to the mediator that the process is not in the best interests of the participants. Prior to the withdrawal, the mediator or person withdrawing will, to the extent possible, explain the reason for any withdrawal to all involved. Conclusion This description of the mediation process and some of the practical aspects of the procedure is intended to assist you in understanding what is involved and evaluate whether or not it is an appropriate option for you. It is important that this procedure be acceptable to both participants. The goal of mediation is to enable two people to decide the terms for settlement of their problems in a creative, cooperative way rather than having the decisions made for them by the court. The mediation process is successful when both participants feel that their issues have been addressed and resolved in a way that maximizes their economic and emotional resources. I look forward to working with you in this positive method for resolving your dispute. © 2003 David R. Hartwig, Esq.
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