What is mediation?Mediation is an alternative dispute resolution process where a third party impartial mediator acts as a facilitator to assist the parties in resolving their dispute to their mutual satisfaction. You could even say that “mediation is facilitated negotiation.” The mediator’s role includes facilitating communication between the parties, assisting in identifying the real issues of the dispute and the parties’ interests, exploring the needs underlying their respective positions, and generating options for settlement. The goal of mediation is that the parties themselves arrive at a mutually acceptable resolution of the dispute. This also involves information gathering and exchange so both parties are aware of the relevant financial circumstances and can make informed decisions.
What does mediation cost?The fee charged by John Weaver to conduct private voluntary mediation that has not been Court-ordered is $350.00 per hour. The payment of the mediator’s fees is usually divided equally between the parties unless they have agreed to some other allocation. When the Circuit Court for Montgomery County orders the parties and their attorneys to attend mediation to resolve property, support, and other financial issues, the Court order sets the mediator’s fee at $200 per hour and requires that the parties share the mediator’s cost equally (i.e., each pays $100 per hour). Payments are made at the end of each mediation session. The parties are also required to pay the mediator’s regular hourly fees for drafting settlement agreements.
How much time does it take to mediate an agreement?The time needed to mediate the terms that will be put into a final written settlement agreement varies depending on the extent of the issues to be decided, the degree of conflict between the parties and their ability to engage in joint problem-solving, and the satisfactory information exchange. For example, disputed child custody issues alone may take a couple sessions. Typically, all of the issues may be mediated in 3 or 4 sessions. The initial session is usually 1½ to 2 hours long, and additional sessions are about two hours each. When the Circuit Court for Montgomery County, Maryland orders parties and counsel to mediate their property and financial disputes, the Court order requires that they participate in a minimum 3-hour mediation session. However, a second session is often necessary to effectively resolve these disputes.
Is mediation held only in-person? While in-person mediation is the usual manner, various platforms, such as Zoom, are available for remote mediation sessions where desired. Remote or virtual mediation can lead to successful mediation experiences and has become more common.
What issues are normally resolved in mediation?The issues that are typically addressed in mediation are issues related to children: legal custody and residential custody, visitation, child support, allocation of college expenses for the children, health insurance, life insurance; alimony and spousal support; division of real property, including the family home; division of tangible personal property including motor vehicles, boats, furniture, furnishings, art work, etc.; disposition of other property accumulated during the marriage, including bank accounts, investment accounts, pension/profit-sharing/retirement accounts, etc.; payment of credit cards and other debts, and tax matters including decisions relative to filing joint or separate tax returns and claiming the children as dependency deductions. Through mediated agreements, parties are able to come to creative and mutually satisfactory solutions that address their particular situation in ways that the court is not able to fashion a resolution. A Mediation Issues Checklist is available as a helpful guide to the kind of issues you may want to consider in your settlement agreement. The Maryland Parenting Plan Tool A more extensive and the American Academy of Matrimonial Lawyer's Parenting Plan Model are also provided for your consideration in cases involving parenting plan agreements for legal custody, physical or residential custody, and visitation or access.
What happens if we reach agreement through mediation? Once the parties have reached agreement a written legal document is prepared. If the parties are represented by counsel at the mediation session, which is the case when the Circuit Court for Montgomery County refers the parties and counsel to mediation to resolve property, support, and other financial matters, often one of the attorneys prepares the agreement. Upon request the mediator will record the points of agreement reached by the parties, and even prepare a comprehensive settlement agreement. When the parties privately mediate without counsel present at the mediation, usually the mediator will prepare a written legal document which the parties can then take to their respective attorneys for review. It is strongly recommended that each party obtain an attorney to advise them throughout the process and to review written agreements before they are signed and become binding.
May the mediator represent either or both parties? No, the mediator must remain neutral and impartial, and the mediator may not represent or legally advise either party or both parties. This is another reason it is strongly recommended that each party retain counsel to represent them and to review any written agreement before it is signed and becomes binding.
Are there any standards of professional conduct that apply to mediators?Yes, there are aspirational Model Standards promulgated by a symposium including the Academy of Family Mediators and the Association of Family and Conciliation Courts. The 13 general standards are set forth below, and they are explained more fully in Model Standards of Practice for Family and Divorce Mediation. Lawyers who serve as mediators are also subject to Maryland Lawyers' Rules of Professional Conduct. 1. A family mediator shall recognize that mediation is based on the principle of self-determination by the participants. 2. A family mediator shall be qualified by education and training to undertake the mediation. 3. A family mediator shall facilitate the participants' understanding of what mediation is and assess their capacity to mediate before the participants reach an agreement to mediate. 4.A family mediator shall conduct the mediation process in an impartial manner.A family mediator shall disclose all actual and potential grounds of bias and conflicts of interestreasonably known to the mediator. The participants shall be free to retain the mediator by an informed, written waiver of the conflict of interest. However, if a bias or conflict of interest clearly impairs a mediator's impartiality, the mediator shall withdraw regardless of the express agreement of the participants. 5.A family mediator shall fully disclose and explain the basis of any compensation, fees andcharges to the participants. 6. A family mediator shall structure the mediation process so that the participants make decisions based on sufficient information and knowledge. 7. A family mediator shall maintain the confidentiality of all information acquired in the mediation process, unless the mediator is permitted or required to reveal the information by law or agreement of the participants. 8.A family mediator shall assist participants in determining how to promote the best interests of children. 9.A family mediator shall recognize a family situation involving child abuse or neglect and take appropriate steps to shape the mediation process accordingly. 10. A family mediator shall recognize a family situation involving domesticabuse and take appropriate steps to shape the mediation process accordingly. 11. A family mediator shall suspend or terminate the mediation process when the mediator reasonably believes that a participant is unable to effectively participate or for other compelling reasons. 12. A family mediator shall be truthful in the advertisement and solicitation for mediation. 13. A family mediator shall acquire and maintain professional competence in mediation.
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John S. Weaver, Of Counsel
Z Family Law, LLC 51 Monroe Street, Suite 1501, Rockville, MD 20850