Some of the most common questions that I am asked by mediation clients at the beginning of their mediation are:
What documents are generated in mediation and how do those documents relate to completing a divorce?
What documents does the mediator handle and what documents do the attorneys handle?
Do either, or both of us need an attorney?
As Mediator, I encourage mediation clients to each have an attorney to consult with as they proceed through mediation. The attorneys can provide legal advice to their clients, be present at mediation meetings if needed, are responsible for preparation of documents to be filed with the court, and present the divorce case. Do mediation clients have to have attorneys? No, but it is strongly encouraged. It is fine if either client wants to wait until some work is done in mediation so that the client has identified some questions/thoughts to review with their own attorney. It is not good practice to have one attorney represent both parties.
The first document that is generated in mediation is an Agreement to Mediate. This is the contract signed by both mediation clients and the mediator, that outlines the mediator’s style (my approach is facilitative), ground rules while in mediation (and that apply even once mediation has ended), and fee arrangement. The form is available to the clients for review prior to the first meeting and then at the beginning of the first meeting I review the form, address any questions, we fill in any blanks, and then sign the Agreement to Mediate. If a mediation client would like to review the Agreement to Mediate with their attorney, they have ample opportunity to do so before the first mediation session.
Then we move into the topics/issues to be mediated.
At the first meeting of a case where separation and/or divorce are the reason why clients have come to mediation, I show the clients a Case Disclosure Form. We discuss getting started with a draft of the Case Disclosure Form (ideally one document reflecting information for both clients). As the mediation progresses, the clients edit the Case Disclosure so it is in best form before a settlement agreement is completed.
We have frequent discussions throughout the mediation whether supporting documentation is needed or requested by either client so that the clients each have what they feel they need to proceed. The mediator is not responsible for ensuring the Case Disclosure Form is sufficient. The clients can seek the advice of their attorneys and/or financial representatives to determine if they have what they need. In mediation we frequently discuss how are we going to get the documentation requested.
A Settlement Agreement Checklist is used to determine what topics/issues the clients have already agreed to, what issues need to be discussed further and decided, and whether there are other topics to add. We generate options on any given topic and consider the clients’ interests and have discussions as needed to reach agreement. The Settlement Agreement Checklist is updated along the way.
At any point where it is helpful, the mediator may prepare a Summary of work for the clients. As mediation nears conclusion, the mediator may prepare a Memorandum of Understanding – which is a summary of agreements not yet in contractual form or signed.
When the clients reach an agreement that they would like to be binding, a Settlement Contract is prepared and signed. Either attorney can prepare contracts. In some cases, as Mediator I prepare a more detailed document to be sent to the attorneys to review/finalize, etc. The clients do not sign Settlement Contracts in my office unless both attorneys are present. The Contact is usually signed in their respective attorney’s office.
Attorneys prepare Pleadings and Orders and are responsible for presenting the case to the court. Sometimes the attorney will present the case through written Affidavit of the Plaintiff and supporting witness(es). The attorneys are responsible for advising clients regarding the settlement contract, jurisdiction, grounds (and the separation period for a no-fault divorce), statutory requirements, corroboration, and order entry. Examples of such orders are Divorce, Retirement, Name Change, and there may be others.
At any time, the clients may return to mediation for discussion regarding changes to the settlement before it is signed, after it is signed, and after they separate or divorce. Depending on the topic, it may be possible for the clients to reach Agreements to Modify or supplement their prior agreement. A Consent Order then may be needed from the attorneys to update the court record.
*Mediators have different styles and this summary outlines the approach I frequently use with clients; there are statutory and ethical requirements for mediators to follow as well.