Happy holidays! To our readers who are embarking on a divorce, or who are in the middle of the divorce storm, we wish you joy and peace this season. We hope that you have gotten some valuable information over the past few months from our series on using mediation to avoid divorce court backlogs.

We will be continuing this series today and into the new year. Last month we reviewed the basic divorce mediation process. Today, we are providing more details about the process, including information about caucuses, ground rules and confidentiality.

Ground Rules

Ground rules are one of the lynchpins of successful divorce mediation. When all participants agree on ground rules and comply with them throughout the mediation process, the chances of success increase dramatically. Your mediator will set out the ground rules for your mediation sessions before you begin to negotiate. The rules are generally standardized for all divorce mediations, but a mediator might add their own unique twist. The most common mediation ground rules are the following:

• Only one person can speak at a time.

  Whenever someone is talking, whether it is the mediator or one of the parties, the parties are prohibited from interrupting. This ensures that the speaker receives the listeners’ full attention. The mediator retains the right to interrupt, because keeping everything on track is part of the mediator’s job. The mediator will usually tell the listening party or parties to take notes while someone else is speaking. That way, when it is their turn to speak, they can be organized and thorough.

• All participants must speak respectfully to and about one another.

  In some divorces, there has been a deterioration of respect between the spouses. They may have become used to exchanges that include yelling, foul language, or personal attacks. Productive negotiations cannot take place in this type of atmosphere. The environment must be civil and free of emotional or verbal abuse.

• All participants must maintain confidentiality.

  The mediator will explain the law regarding confidentiality of information presented in mediation (see more below) and review any confidentiality provisions in your signed agreement.

• Participants have a right to breaks and caucuses.

  A caucus is a separate meeting with the mediator (see more below). In general, participants have a right to request breaks and caucuses whenever they need to do so.

• Participants must agree not to file any papers in court.

  Taking one issue out of mediation for a court opinion does not always mean that the mediation cannot move forward on the remaining issues. Nevertheless, filing court papers during mediation should happen only with the agreement of both spouses and the mediator. Any other rule would decrease the atmosphere of trust and cooperation that is so essential to the success of mediation.

Caucuses

Caucuses are separate meetings between each participant and the mediator.  Either party has the right to request a caucus at any time and the mediator will generally respond immediately. The mediator may also ask to caucus separately. There are no time limits on the number or length of caucuses. In some mediations they are rare, in others they may be frequent. Because the mediator must always remain strictly neutral, if one party requests separate time, the mediator will offer the other party equal separate time. Mediators do not generally speak to participants separately outside of sessions, but if it is necessary to do so, the equal time rule would apply to this as well.

Confidentiality

It is important for both spouses to understand what kind of information the mediator will treat as confidential. In general, a mediator will not share information that the parties bring into mediation with anyone outside the mediation unless the information raises a serious safety or legal concern. While openness between the parties is a key prerequisite of successful mediation, the mediator will also obtain your consent before sharing with the other party things that you have told the mediator in confidence during a caucus. If you move to court because you are unable to conclude your case in mediation, there will likely be things that you produced in mediation that you will need to present as evidence in court to resolve your issues. Your attorney can give you more information about what is and is not public information in a New Jersey litigated divorce.

Concluding the Process

If you are able to resolve all your issues in mediation, your mediator will put your agreements into a Memorandum of Understanding (MOU). This MOU will form the outline for your final Marital Settlement Agreement (MSA). Next month we will detail the process for finalizing your MSA and concluding your divorce after mediation.

Meanwhile, if you want to know more about any aspect of mediation, or if you are ready to start mediation, contact one of our experienced mediators today.