Client preparation for the mediation process is important and essential to a successful mediation experience. This guide is to help attorneys better understand the mediation process and promote uniformity.
Parties MUST attend the Mediation Orientation session with the assigned mediator UNLESS a party or a child of the parties has been the subject of domestic violence or child abuse during the pendency of the action or within 24 months preceding the filing of the action and the mediator has determined that the mediation should not go forward. Attendance by a party is not optional; it is an Order of Court. Advising a client that he or she does not have to attend mediation can result in serious consequences for you and your client including a finding of contempt and sanctions.
Mediation may be cancelled if a party or child of either party is or has been the subject of domestic violence or abuse within the past 24 months. In such a case you or the party should notify the mediator of this fact and the mediator will make a determination to hold or cancel the mediation.
Prepare your client in advance for the mediation process and encourage your client to use mediation to resolve some or all of the custody issues. Topics you may wish to discuss with your client include the following:
how to articulate their concerns, needs and desires regarding their children;
the value of mediation and the opportunity they have to retain some control of their lives as well as the lives of their children;
the form Custody Order;
the issues that are likely to come up in mediation and the provisions that your client would want to include in any Custody Order.
that they have the right of attorney review but that they can discuss and agree to whatever they wish and that the form Custody Order should be written to reflect any agreement.
Your client will be asked to sign the Mediation report only to acknowledge attending the Mediation Orientation and being advised of various rights and responsibilities. If your client refuses to sign the report the mediator will note that refusal on the report.
Your client has the right to have you review any agreement/order prior to signing it unless he or she waives the right of attorney review and signs the agreement/order at the mediation session. You may wish to discuss with your client the potential advantages and disadvantages of not signing any written agreement at the time of the session.
All agreed to Custody Orders must be submitted to Family Court Administration five business days in advance of any scheduled Conciliation Conference in order for the matter to be taken off the Conciliation Docket. If the parties are close to reaching an agreement but it is not finalized, they will still be required to attend the Conciliation Conference.
If the parties have been unable to resolve all of their issues at the initial mediation session and have agreed to continue with private mediation but there is no time to schedule the mediation in advance of the Conciliation Conference, you may request a continuance of the 1st scheduled Conciliation Conference provided that the other side agrees and you give at least 5 business days’ notice to the Family Court Administrator. You should include in your Motion for Continuance any information about the scheduling of continuing mediation sessions and that it is for purposes of reaching a custody agreement.