An Agreement to Mediate is the contract the spouses and the mediator(s) sign at the beginning of a divorce mediation in which they formally engage in the mediation process. The following is a typical Agreement to Mediate:
AGREEMENT TO MEDIATE
We, the undersigned parties, agree to voluntarily enter the mediation process and understand and consent to the following:
- Definition of Mediation: Mediation is a process in which a neutral or neutrals facilitate communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and reach a mutually agreeable resolution to their dispute.
- Role of the Mediator: The mediators act as facilitators, not as advocates or judges. The mediators assist the parties in identifying issues, reducing obstacles to communication, maximizing the exploration of alternatives, and helping parties reach voluntary agreements.
- Mediator’s Style/Approach: The mediators use an evaluative approach. The mediators guide the parties’ conversation and discussion of issues, sometimes offering opinions regarding the likely judicial outcomes. The mediator will not tell the parties what to do (i.e., provide legal advice).
- The Mediation Process: The process will include, at a minimum, an opportunity for all parties to be heard, the identification of issues to be resolved, the generation of alternatives for resolution, and if the parties so desire, the development of a Memorandum of Understanding or Agreement.
- Confidentiality: All memoranda, work product and other materials contained in the case files of the neutrals and Kales & Kales, PLC are confidential. Any communication made in or in connection with the dispute resolution proceeding which relates to the controversy, including screening, intake, and scheduling a dispute resolution proceeding, is confidential. Confidential materials and communications are not subject to disclosure in discovery or in any judicial or administrative proceeding except (i) where all parties to the dispute resolution proceeding agree, in writing, to waive confidentiality, (ii) in a subsequent action between the neutral and/or neutrals and/or Kales & Kales, PLC and a party to the dispute resolution proceeding for damages arising out of the dispute resolution proceeding, (iii) statements, memoranda, materials, and other tangible evidence, otherwise subject to discovery, which were not prepared specifically for use in and actually used in the dispute resolution proceeding, (iv) where a threat to inflict bodily injury is made, (v) where communications are intentionally used to plan, attempt to commit, or commit a crime or conceal an ongoing crime, (vi) where an ethics complaint is made against a neutral and/or neutrals by a party to the dispute resolution proceeding to the extent necessary for the complainant to prove misconduct and the neutral and/or neutrals to defend against such complaint, (vii) where communications are sought or offered to prove or disprove a claim or complaint of misconduct or malpractice filed against a party’s legal representative based on conduct occurring during a mediation, (viii) where communications are sought or offered to prove or disprove any of the grounds listed in Section 8.01-576.12 in a proceeding to vacate a mediated agreement or (ix) as provided by law or rule.
- Mediators are mandatory reporters of child abuse. (Virginia Code Section 63.1-248.3) This information will not remain confidential.
- Each party agrees to provide substantial full disclosure of all relevant property and financial information.
- The mediators do not provide legal advice. Parties are encouraged to seek the advice of independent counsel at any time. Any mediated agreement may affect the legal rights of the parties. Each party to the mediation should have any draft agreement reviewed by independent counsel prior to signing the agreement.
- The fee arrangement is as follows: The mediators, while working together or individually, will be paid $385 per hour, billed in 1/10 of an hour increments, for all services provided on the parties’ behalves related to their mediation, including, without limitation, mediation sessions, drafting of agreements, emails, and telephone conversations. We understand that we shall be responsible for one hour of the mediators’ time at the above stated rate for any appointment that we do not attend and do not provide at least 48 hours advance notice of cancellation.