Yes I do. And I absolutely love the process. When I mediate, I already have two people who want to resolve their differences without litigation. That is a wonderful start. If I can get two parties to talk to each other and come up with solutions quickly then I am very excited! I think our role as family law attorney’s is to help families. Yes, help families. This is my favorite way to do that and any chance that I have to do so I am enthused. Below is an overview of the process.
Understanding The Mediation Process
Mediation is a voluntary process by which a neutral third party assists you in reaching a mutually acceptable agreement as to the issues of visitation and custody of your child(ren), and/or the division of property. My role as your mediator will be to assist you in identifying the issues, reducing misunderstanding, clarifying priorities, exploring areas of compromise and finding points of agreement — not in telling you how you should resolve those issues. Any agreement reached by you can resolve all or only some of the disputed issues.
Legal Counsel and Legal Advice
As a mediator, I am not acting as an attorney and will not under any circumstances give legal advice to either party. Both parties are advised to seek their own legal counsel at any time during the mediation proceeding.
A mediator may give legal information to both parties as may be necessary for the parties to make informed decisions. However, the mediator cannot give either party legal advice. Understand that legal information and legal advice are very different. Legal advice relates to your rights under the law. Legal information relates to general information about the law.
Each of the parties is encouraged to seek the advice of independent and separate counsel at any time during the mediation process with regard to his or her individual legal rights and responsibilities.
Each of the parties is requested to seek the advice of independent and separate legal counsel prior to signing any formal separation agreement prepared by an attorney who purports to incorporate the Memorandum of Understanding the parties have designed.
No Legal Action to be Taken During Mediation Process
The parties agree that no legal action of any kind will be taken by either of them during the course of mediation, except with the express agreement of the other party and the mediator. Further, if either or both parties have retained counsel prior to mediation, he or she shall be obligated to direct his or her attorney in writing that no action is to be taken on his or her case while the matter is in mediation.
Although the mediator is a licensed Kansas attorney, he/she cannot give legal advice to any participant and he/she cannot represent either or both of them in their marital dissolution or child custody issues.
Communications with the Mediator
The parties will not communicate or meet with the mediator concerning matters in mediation except in the presence of each other during a mediation session unless the parties expressly agree beforehand that communication between the mediator and an individual party may be helpful and appropriate in reaching settlement.
Third Party Involvement
To facilitate the mediation process, the parties shall refrain from discussing the matters in mediation with friends, relatives or others. However, you are encouraged to consult with legal counsel at any time and to consult with mental health professionals or clergy as you may find helpful.
Each party shall fully and completely disclose in good faith to the other party and the mediator all information and writings, such as financial statements, income tax returns, pension and/or profit-sharing plans, or any other documentation.
The preparation of budgets and financial statements by each party is an essential part of the mediation process. If either party shall fail or refuse to prepare those documents adequately the mediator shall have the duty to suspend or, if required, terminate the mediation process.
Transfers of Property During Mediation
During the mediation process neither of the parties shall transfer, encumber, conceal, sell or in any other way dispose of any tangible or intangible property except in the usual course of business or for the necessities of life. In addition, transfers or expenditures by either party outside regular monthly expenses shall be disclosed prior to expenditure.
Any participant or the mediator may terminate mediation at any time, except when the mediation is court-ordered pursuant to the corresponding Kansas or Missouri statutes, in which case the participants may terminate the mediation at any time after the required time.
The mediator will terminate the mediation whenever the mediator believes any one of the following:
(a) continuation of the process would harm or prejudice one or more of the parties or the children;
(b) the ability or willingness of any participant to participate meaningfully in mediation is so lacking that a reasonable agreement is unlikely;
(c) the participants’ interests are so complex and difficult that the participants cannot prudently reach an agreement without legal or other expert assistance;
(d) there is a known or potential conflict of interest on the part of the mediator which would affect the mediator’s impartiality;
(e) there has not been a fair and full disclosure of all relevant information;
(f) the mediator must terminate the mediation to report suspected child abuse;
(g) in the mediator’s professional judgment the agreement does or will involve overreaching, duress, or unfairness; or,
(h) the continuation of the process would harm a participant or the proposed agreement does not protect the best interests of the children.
Evidence of anything said or of any admission made in the course of the mediation is not admissible in evidence, and disclosure of such evidence shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given. By signing this agreement, the parties are waiving the right to subpoena or otherwise compel the mediator or the mediator’s agent to disclose any matter disclosed in the process of setting up or conducting the mediation.
Unless the document specifically states to the contrary and is signed by all parties to the mediation, no document prepared for the purpose of, or in the course of, or pursuant to mediation, or a copy of any such document shall be admitted into evidence, and disclosure of any such document shall not be compelled in any civil action in which, pursuant to law, testimony can be compelled to be given.
Evidence may be admitted if all persons involved in the mediation consent to its disclosure.
All communications between each participant and the mediator shall be confidential and, in the event of litigation regarding custody or visitation with the children of the participants or any other matters discussed with the mediator, neither participant shall call or cause anyone else to call the mediator as a witness or subpoena his/her records.
If mediation has been court-ordered, the mediator shall report a termination of the mediation to the court, but will not state the reason for termination except when the termination of the mediation is due to a conflict of interest or bias on the part of the mediator.
If subpoenaed or otherwise notified to testify, the mediator will inform the participants immediately so as to afford them an opportunity to quash the process.
Mandatory Reporting of Child Abuse and Neglect
The participants understand that mediators have imposed upon them by Kansas Statutes Annotated 38-1522, and amendments thereto, certain obligations concerning the disclosure and reporting of child abuse and neglect. If during the mediation process a matter comes to the mediator’s attention which he/she believes he/she is obligated by law to report to any agency or authority, nothing contained herein shall prohibit him/her from making such a report or disclosure. Pursuant to Kansas and Missouri law, the mediator is further obligated to report the commission of a crime during the mediation process or an expressed intent to commit a crime in the future, and nothing herein shall prevent the reporting of such crimes or expressed intents. The participants hereby agree to release and hold the mediator harmless from any damage they may suffer as a result of such disclosures.