Hersh Family Law Practice



Mediation is a process of conflict resolution that seeks to facilitate an agreement resolving custody or financial issues. The purpose of this section is to explain mediation in the context of financial issues incident to dissolving a marital or domestic partner relationship, although mediation may be used by unmarried people seeking a Premarital Agreement or by married Parties seeking a Postnuptial Agreement.

Mediation is a voluntary process in which two people, with or without their attorneys present, seek the assistance of a neutral attorney to help settle their financial affairs. HFLP provides mediation services. Jill Hersh received mediation training in 1985 from the Center for Mediation and Law. HFLP also works with and advises individuals while they go through mediation with a third, neutral mediator.

A common model for mediation involves a neutral attorney mediator who meets with the Parties who are present without their attorneys. Under these circumstances, the mediator always will advise the Parties in mediation each to retain his/her own attorney to advise him/her about the issues on a confidential basis. This enables ongoing assistance to understand the legal issues and financial decisions that will be made incrementally as the mediator takes the Parties through the process of understanding, addressing, and resolving their financial concerns. In addition, each Party will have the opportunity for confidential communication about different questions or concerns with his/her own attorney.

This confidentiality with each Party's own attorney is important. The neutrality of the mediator precludes the mediator's having a confidential relationship with one member of the couple to the detriment of the other. In addition, the neutrality of the mediator precludes giving advice to one member of the couple to the detriment of the other or assisting with strategy from one member's point of view to the potential disadvantage of the other.

Another approach to mediation includes the Parties and their respective attorneys in the mediation process. This may include meetings of the mediator with the clients and each client's attorney. A very competent mediator often will have the flexibility to approach the mediation process pragmatically and with an understanding of "what will work" for the individual case. This may result in a mediation process that is a hybrid - individuals meeting with the mediator with their respective attorneys, individuals meeting with the mediator without their attorneys, and/or communication between the mediator and one or both attorneys to facilitate movement on an issue or to enable a better understanding of any obstacles in the path of resolution.

A couple wishing to use the mediation services of an attorney at HFLP will have limited initial contact if only one member of that couple makes the originating call to the firm. In that instance, the call will not include any substantive information about the couple's estate or either Party's concerns about the dissolution in order to preserve neutrality. Substantive information about the issues of the dissolution may be imparted during the originating call if both members of the couple are participants in that call. In that case, the potential mediator attorney is simultaneously speaking with both members of the couple and neither will feel that the other has had the advantage of a private call with a mediator who is supposed to be neutral.

A couple hoping to receive mediation services from HFLP will be given an opportunity to meet with the attorney to determine if they agree to use that attorney's services. This meeting will be for purposes of an introduction and also to enable the attorney to assess suitability for mediation. Any couple scheduling such a meeting will receive a letter prior to the appointment briefly describing the mediation process and confirming that the mediator acts as a neutral third party.

Mediators need to assess whether the Parties seeking mediation are "suitable" for the process, particularly if they plan to meet without any attorneys present. Mediation is suitable when there is not a perceived disparity in power or knowledge in the relationship and the Parties have the same motive for attending mediation. Mediation is not suitable if one Party is intimidated or fearful of the other, one Party wishes to have continued access to the other as a means of control, one Party is not credible or honest, or the conflict between the Parties is too high for constructive communication. Mediation is not suitable if one Party's anxiety, fear, or distress interferes with his/her ability or think clearly and freely while in the mediation environment.

The term, "mediation", also is used to describe a meeting of the Parties, their counsel, and a fifth person who is hired to help "settle" the issues of the dissolving relationship. This may involve a single extended session or ongoing meetings to discuss and resolve issues and is more commonly known as a "settlement conference".

This is intended to be a summary description and should not be relied upon as legal advice. More information may be obtained by consulting an attorney providing these services at HFLP.


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