Did You Know. . . . Important Information for Early Settlement Mediators
by Kathy King
Below are some items Early Settlement mediators may or may not have picked up in training that are important to know.
Using a Mediation Agreement Form in place of a Memorandum of Understanding (MOU) for a family related case can, at the least, cause a lot of confusion. At most, using the wrong form can result in additional litigation.
The difference between the Mediation Agreement and the MOU forms has to do with finality. The Mediation Agreement form used for small claims, civil, and real estate cases IS SIGNED BY THE PARTIES, AND IS BINDING. The MOU that is used only for family related cases (divorce, paternity, guardianship, etc.) IS NOT BINDING!
NO PERSON CAN BE SERVED WHILE IN MEDIATION
The statute reads “No subpoena, summons, complaint, petition, citation, or other process of any kind may be served upon any person who is at or near the site of any mediation session and is there because of mediation.”
It may be well worth your time to visit the following link to print off a copy of this portion of the Dispute Resolution Act. Keeping a copy handy while mediating will be helpful if service is attempted by process servers during mediation!
If you have any additional questions about how to handle attempted service during mediation, contact your area director.
ANY DOCUMENT REFERRENCED ON AN AGREEMENT SHOULD, IF POSSIBLE, BE ATTACHED
It is not uncommon for one of the parties of a family and divorce case to bring a list of property or debts to the mediation. If this document is referenced in the agreement (MOU), it is extremely helpful to attach a copy.
Two of the main reasons documents should be attached with the agreement are: 1.) Parties forget what is discussed but not written down. We want the parties to have full knowledge of what was agreed to during mediation for weeks, months, or even years after the mediation ends; and 2.) Attorneys are sometimes replaced during litigation. When a new attorney is appointed after the mediation was held, all they can reference is what is included with the MOU. If an additional document is referrenced but not included with the Memorandum of Understanding, attorneys are confused, frustrated, and unable to tell what was agreed upon in the mediation.
CONFIDENTIALITY EXTENDS DURING CAUCUSING
How often has an individual brought a friend or family member to mediation for moral support? Unless both parties agree that the "friend" is welcome in mediation they cannot enter the mediation room. But what happens during caucusing or during breaks in mediation? Too often information from mediation is shared. According to our guidelines, unless everyone who is party to the mediation agrees that information can be shared, the mediation participant continues to be bound by confidentiality.
While we as mediators are not going to be “the enforcers” of confidentiality, it is certainly helpful to remind participants before a break, of the commitment to confidentiality they made by signing the Consent to Mediate form.
Hopefully this list of "did you know" items has been helpful. What are some other things you've learned that you feel are important for other mediators to know? Please feel free to share in the comment section below.