Lawmoe Question about mediation.

[lovebug]

We have mediation scheduled for January 21. Final hearing on Feb 10. There has been no GAL or any custody evals done. There was also no depositions done on either side. My attorney didn't feel the need because of all the evidence we have. Nothing else was asked for or ordered.

Mediation was ordered. I am the plaintiff seeking sole custody of my 9 year old child. I have physical evidence of medical neglect and affidavids (sp) from two doctors stating that BM refused needed and recommeded treat of child and that child suffered more than necessary as a result. One goes on to say that in his opinion BM put child's heath at risk but not giving treatment.

Child had a skin infection that BM refused to treat with antibiotics and child got blood sepsis(sp) aka blood infection.

Anyway, Will my attorney give all the evidence that we have to the mediator?

Who pays for the mediator?

Are there mediators that work for the court as well as independant mediators?

Can you tell me what to expect? What types of questions will be asked? Can information that is obtained in mediation be used against either party at trial?

I've never done this before and I'd like to know what to resonably expect. BM and I both reside in GA.


Thanks for your help.

P.S. If anyone else has anything to add or any other comments I would appreciate that as well.

~D~

[Dr.Stepmom]

I hate to burst your bubble, but if mediation in GA is anything like the mediation we went through, don't expect too much.
The goal is not to find out what is best for the child, evaluate the situation or the homes, it is only to mediate between the parents and come to a middle ground.
We went through mediation twice and very little was ever solved.  DH was pushing for full custody and we got a little extra time, but not much.  I think it takes a full custody evaluation to have someone really look hard at the situation, consider all the evidence and make any kind of seroius change.  I don't think a mediator will make a recommendation outside of what they feel both parents will agree to...and my guess is one party would never agree to a change in custodial parent.
After slowly increasing our time little by little through mediation, we now await the results of our custody evaluation in hopes of real change.
Keep your fingers crossed for us and good luck to you...BTW ask for the stars because you will likely be given a middle of the road compromise!

[backwardsbike]

I have to agree with the previous poster.  I went through mediation twice in PA.  The first time was right after the separation and there was no "custodial parent".  We were 50/50 legal and physical.  We were able to work out somethings but then the ex met a new woman and he'd agree in the session then back out afterwards.  Result was we paid $$ for nothing.  I then invited to make the woman part of the sessions thinking that if I was open and could actually talk to the decision maker ( my ex never could make decisons or take responsibility) we'd accomplish more.  The result of that was that the other woman left after a few sessions in a  huff because the mediator suggested she shouldn't bad mouth me or second guess any personal decisions I made which affected only me and the kids because "they aren't your kids".  Since the other woman had her nose out of joint becasue the mediator refused to allow her back inside the sessions she told the first custody evaluator that the mediator was biased and the evaluator removed the mediator from our case without batting an eyelid.

The second time I was in mediaton also in PA was after the first eval.  Ex already had CP status and would not honor court order.  Judge ordered mediation so he wouldn't have to deal with us anymore.  Didn't work.  Now that he was CP ex would agree to nothing.  And on top of that he used the sessions to gather information about my household which he then used to gett he kids to spy on us and gather more information.

Good luck.  Mediation is great for those couples who can be civil to each other and really want to work together.  I tihink it also works much better when thngs are already 50/50 and you just want to work out minor disagreements.

[wendl]

MY dh went thru mediation, nothing happened as neither parent was willing to meet in the middle. I think mediation only works when both parents are willing to act like adults and make proper decisions in regards to the chidl(ren)

As for who pays, it all depends, sometimes they will split the cost, sometimes they won't.

Just like pre-trial conference, the judge listens to both sides, and in our case he says he saw both parents loved his kids and that neither parent will be changing their minds, therefore it went to trial.

**These are my opinions, they are not legal advice**

[Lawmoe]

First, with regard to your questions:

(1) Will my attorney give all the evidence that we have to the mediator?

It can be used to negotiate, but generally it is referenced and not rpovided. Mediation is a chance to reach an agreement by negotiating,. It is not a forum to present your case like a trial. You should, however, display that you have a strong case if the matter is to proceed to trial. For example, it is likely you will hear something like:  "If this matter is left up to a Judge, once we present docmentation for X and Y, I would imagine the Judge would rule as follows."

(2) Who pays for the mediator?

Usually it is paid equally by both parties.

(3)  Are there mediators that work for the court as well as independant mediators?

Yes.

(4) Can you tell me what to expect? What types of questions will be asked?

Mediation is organic and what  occurs often depends on the dynamics between the parties, the issues being discussed and teh facts of the case. You can expect htat you will first meet with the mediator who will go over the ground rules including how to behave.  The parties would then sign a contract to mediate befoire the mediation commences. Some of the things I review in mediation before iit starts include:

THE PROCESS OF MEDIATION

In the process of mediation, a mediator/facilitator helps participants craft their own resolutions. In this process, the mediator/facilitator may make suggestions for the participants to consider, such as alternative ways of resolving problems. Additionally, the mediator/facilitator may request information from the participants and/or their attorneys to adequately facilitate the mediation and to insure the issues being mediated are mutually agreed upon. In crafting their own solutions, participants are able to more carefully consider their individual circumstances. The success of mediation requires:(1) that the mediator remain impartial throughout; (2) that the participants reach decisions voluntarily; (3) that the decisions reached are based on sufficient factual information; and (4) that each participant fully understands the consequence of their resolutions.

AGREEMENTS

Each participant in mediation agrees and understands:

(1)    RESPECT: Each party shall treat other participants in the mediation process with respect;

(2)    LISTEN: Each party will listen to other participants with an open mind;
 
(3)    FULL DISCLOSURE: Each party will fully disclose information requested by the facilitator/mediator;

(4)     VOLUNTARY NATURE OF MEDIATION: Each party understands and agrees that the mediation is a voluntary process.

(5)   TERMINATION OF MEDIATION: The mediator may terminate the mediation process if, in his/her judgement, one or both of the participants is unwilling to continue to participate in good faith;

(6)    COST: The mediation retainer and hourly costs are based on a sliding fee scale attached hereto as Attachment A, and shall be paid as set forth at the bottom of this agreement. It is expected that fees will be paid in full at the time service is provided. Participants will be charged for costs incurred by the mediator including but not limited to the following: copies (.20 per page), postage, any courier fees, mileage (.29 per mile);


(8)    LEGAL REPRESENTATION: Each participant is encouraged to retain independent counsel for advice and guidance throughout the mediation process;

(9)     COMMUNICATION WITH MEDIATOR: Participants are discouraged from contacting the mediator outside of the mediation except as may be necessary to provide requested information or to make scheduling changes.

(10)   MEDIATION PROCESS: The mediator will discuss with the participants at the intake interview whether the parties wish to participate in individual sessions (caucus), together with the mediator, or with third parties (ie. attorneys) present;

(11)   MEDIATOR CONFIDENTIALITY: The mediator will NOT voluntarily disclose to any third party information obtained during the mediation process without the prior written consent of both participants, unless such disclosure is required by law.;

 
(12)   MEDIATOR NOT A WITNESS: The mediator may NOT be called on to testify or in any way be called as a court witness for either participant except as required by law;

(13)   MEDIATOR CONFIDENTIALITY: The mediator will NOT voluntarily disclose to any third party information obtained during the mediation process without the prior written consent of both participants, unless such disclosure is required by law.;

(14)   MEDIATOR NOT A WITNESS: The mediator may NOT be called on to testify or in any way be called as a court witness for either participant except as required by law;

The participants will NOT disclose to any third party, with the exception of  their respective counsel, any statements made during the mediation.


Can information that is obtained in mediation be used against either
party at trial?

No. See 12 - 14 above.


SOME THINGS TO KEEP IN MIND FOR YOUR MEDIATION


(1) You must be organized. Make an outline of ALL the issues in the case. Outline your initial position with the undeerstanding that you will be moving that position in mediation.

(2) Do not make your best offer first.

(3) Highlight the issues that are most important to your spouse and not so important to you. Use those issues as bargaining chips.

(4) Seek agreement on small issues. Small agreements can lead to bigger agrements oncee you get the ball rolling. For example, saying -"Can we agree that we both are here to do what we believe is best for the children?" Who can disagree with that. You have your first agreement.

(5) With regard to custody issues, it is often better to remove the term "custody" from negotioations. It is an emotionally charged word. Instad, negotiate a parenting schedule that works with both parent's schedules. That is truly what you are trying to do. Once you have a schedule, you can always apply a label later or allow the court to do so.

(6) If you make an offer, do not change your position until you receive a counter offer. If you do, you are bargaining against yourself.

(7) Keep your cool and do not engage in argument. It is counter productive. Even if your spouse tries to push your buttons refrain.

(8) If negotiations break down on one issue, move onto another. You can settle one issue without settling them all. However, becarefully that in so doing, you do not paint yourself into a corner by reserving only an issue in which your position is weak. Then you have no bargaining tools.

[lovebug]

Thanks! That's really good information.

[MixedBag]

Loved your explanation about the process.  DH has been through it once and so have I.

It seems like the mediator can't "report" anything to the court?

In my case, the EX wanted to walk out in the middle of the session, and the mediator said "Then I'll report you walked out."  So instead, he "ended" mediation the next day.  His attorney said (in court) that I wasn't giving in to anything and therefore mediation failed.  During mediation, the mediator supported my position and yes, things were going my way, because it was the right way where our son was concerned.

In DH's case, the Supreme Court Mediation Judge gave up because his EX was being totally unreasonable, like waaaay out there to the point where her attorney was overhead apologizing to the Judge for her client's behavior and unreasonableness.

So in both our cases, it seemed like a real waste of time except that our respective EXs showed their true colors -- but the judge doesn't get to see that at all.

[Lawmoe]

You are correct that anything that occurs in mediation should not be presented in Court. The reasoning for this is that the legislature and the courts wish to allow the parties significant feedom to resolve their cases prioer to Court. To allow the use of information form the mediation would have a chilling effect on the parties canndor.  

[MixedBag]

Thanks -- in our case, maybe the EXs would have acted more like parents instead of vindictive spouses who like to use the boys to hurt us.