Sarah Gurney Attorney Sebastopol CAMedaiton for divorce, Sebastopol, Santa Rosa, CA
Mediation for confilct resolution














Principles of the Mediation Process

1. Non-Representation.
A mediator does not represent either party and, therefore, does not assume the role of protector of either, as would be the case with an adversary lawyer. The mediator's function is to look at the totality of the situation, and to facilitate a resolution of conflict responding to each party's needs.





   


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2. Future Non-Participation.
The mediator is unavailable to work for either of the parties as a counselor or advocate in connection with any of the matters arising in the mediation at a later time, nor would she be a witness for either of them, unless both consented and it was consistent with the mediator's view of the parties' interest.

3. Role of Mediator.
The mediator's role is to set the tone, facilitate productive communication (including surfacing assumptions, expectations and feelings), define issues, help the parties define and assert their needs and develop options, point out legal and other implications, help to articulate and follow guiding principles, help the parties find common ground consistent with the common principles, and draft the agreement.

4. Mutuality of Process.
The process of mediation is one to be mutually agreed upon by the parties and mediator, including what items are to be discussed and when. The priority is that a process is used which responds to their most normal ways of behaving with each other, and that is productive. This means that the three must agree what issues will be discussed and when. It is important to find common principles to which both parties agree as a basis for creating a framework from which a specific agreement can follow.

5. Non-Binding Process.
Nothing is binding in a mediation until after an agreement has been reached, drafted, reviewed by lawyers, and then signed. Either party is free to leave at any time. The mediator has no power to decide what agreement the parties should reach.

6. Risks of Process.
There are risks of mediation, including the risk of coming to an agreement for the sake of agreeing, rather than standing up for what each believes to be right.

7. Full Disclosure.
Each party promises to fully disclose any and all relevant facts and supporting documentation requested by the other party, or by the mediator, that may have any possible relevance to the mediation.

8. Confidentiality.
The mediator holds all matters confidential as to outsiders, but holds nothing confidential between the parties. If the mediator speaks with either of the parties separately, that information is available to the other party unless agreed otherwise. The mediator will not speak with either of the reviewing lawyers about anything that was said in the mediation, unless both parties give permission. The parties also agree that they will hold everything said in the process to be confidential.

9. Settlement Discussions.
The mediator and parties agree that these are settlement discussions, and that any statements made by either party would be inadmissible as evidence against the other. The basis for this is to create as much willingness on the part of the parties to say whatever they would like, with a minimum of consequence for the adversary process if mediation does not result in agreement.

10. Fairness:
Expression of Opinion by Mediator. The priority is for the parties to reach an agreement that they each believe to be fair. In seeking to do so, the mediator will not offer any advice or opinion about what should be viewed as fair. There are three exceptions: If the mediator believes (1) that one party is taking advantage of the other; (2) that the parties are reaching an agreement that, in the mediator's view appears sufficiently unfair that it would be a severe miscarriage of justice; or (3) that a court would not accept the agreement.

11. The Role of Law.
The mediator agrees to predict what a court would do and what adversary lawyers would say in a given situation. However, predictions about what a court would do are usually considered an additional factor in making decisions, neither wholly determinative nor disregarded as irrelevant. Ideally, the law is a relevant factor, playing a role subordinate to the parties' sense of fairness.

12. Lawyer Review.
It is important that the parties view the lawyers who review the agreement as consultants to them, rather than as lawyers who will take over the case from them.

13. Participation of Others.
We agree upon involvement of others in the process, either directly or indirectly, such as children, appraisers, accountants or psychologists.

14. Splitting of Fees.
Unless there is good reason to adopt some other principle, the the parties usually split the mediation fees equally between them.

Sarah Glade Gurney . Family Law Attorney . 130 Petaluma Avenue, Suite 2B . Sebastopol, CA 95472 . T: 707.823.6500 F: 707.823.6501