This agreement is based upon the participants’ representation that they intend to create through mediation an agreement that addresses and settles major areas of dispute in all subject matters related to a final judgment of divorce, and which is fair and workable for both participants.
Therefore,the parties agree:
1. Costs of Mediation. Mediation shall be conducted by the mediator who shall be compensated at the original rate of $350.00 per hour for time spent in the conduct of mediation sessions and follow-up work on behalf of the participants to achieve the goals of mediation, including meetings with the participants,possibly meetings with the participants’ attorneys, drafting postmediation memoranda setting forth the agreements reached ,a final memorandum of settlement, or drafting other related documents. Session fees are due at the end of each session. Fees incurred between sessions shall be paid at the next scheduled session. Post-session activities, if any,such as drafting documents, shall be paid within 30 days of invoicing.
2. Advance. An advance payment of $3,500.00 shall be paid by the participants to the mediator upon the signing of this agreement. Those funds will be held in the mediator’s firm’s attorney trust account. Those funds will be withdrawn and used to pay for all work done between mediation sessions and for the drafting of a memorandum of understanding until the conclusion of the mediation and all services are concluded. Any remaining balance of the advance will be applied to the participants' final bill.
3.Privacy of Mediation. (Privilege and Confidentiality)
a. Privilege. All communications that occur during mediation, both orally and
written, whether during sessions or outside of sessions, are subject to privilege pursuant to the New Jersey Uniform Mediation Act (UMA). This law strictly prohibits disclosure of information discussed in or obtained through mediation to the court. Accordingly, all communications between and among the parties/participants and the mediators hall not be disclosed to any court. Pursuant to this privilege, the mediator has the right to refuse to disclose any mediation communication,as that term is defined in the UMA, to the court, and may prevent any other person from disclosing a mediation communication(s) of the mediator.
There are exceptions to this privilege:
i.If a participant in mediation makes a threat or statement or a plan to
inflict bodily injury, the mediator shall inform the person who has been threatened and report the threat to law enforcement authorities.
ii.The mediator has an affirmative duty to report to the Division of Child
Placement and Permanency if he/she has reasonable cause to believe that a child has been subjected to abuse and/or neglect.
iii. The mediator has an affirmative duty to report ongoing criminal activity
or threats of criminal activity to law enforcement authorities.
b. Confidentiality. The parties understand that mediation depends upon the
development of trust among the parties/participants and the mediator resulting from openness, frankness, and reasonable risk-taking. As a result, the mediation must be afforded the protection and complete and unfettered confidentiality. The mediator, parties and all participants will treat all information provided during mediation sessions, and among the parties/participants between sessions, as confidential and will not reveal same to any third party, except in the event that one of the parties/participants reveals information about which the mediator has a mandatory obligation to report such as ongoing or future criminal activity, threats against the life or safety of another person, child abuse/neglect, and domestic violence. All mediation parties/participants agree that communications during the entire mediation process are confidential. No party or participant will disclose the contents of these communications to any third party unless required by a court to do so or to the extent necessary to obtain professional advice from attorneys, therapists, tax advisers and other similar professionals, all of whom will be subject to the same confidentiality. The mediator may communicate with the participants’ attorneys. Any such communication and/or disclosures made to the participants’ attorneys will also be confidential and privileged as part of the mediation.
c. If the mediator meets with parties/participants in caucus (individually),such
caucuses are part of the mediation and subject to privilege and confidentiality as to non participants.
d.No party or participant shall provide any other person, court, or entity with
notes or transcripts made of the mediation sessions, except to the extent necessary to obtain professional advice from attorneys, therapists, tax advisers and other similar professionals, all of which will be subject to the same confidentiality.
e.Only the mediation parties and their attorneys will be permitted to and be
present at and participate in mediation sessions. Third parties may not participate without consent of all participants and such participation is at the final discretion of the mediator only if the mediator determines that their participation may facilitate settlement. All persons who participate in mediation sessions shall be required to sign the Mediation Agreement and are subject to the confidentiality of mediation.
f. The parties agree that neither will call or subpoena or allow anyone else to
subpoena the mediator or any employee or agent of the mediator as a witness to testify in any court proceedings or arbitrations, nor will either party subpoena or allow any attorney acting on his or her behalf to subpoena any records, notes, or other documents of the mediator in any matter related to the mediation. If a party to this agreement tries to have the mediator produce documents and/or appear in court in any situation in which the statutory privilege applies, that party will pay the mediator’s legal fees in opposing the production and/or appearance as well as compensation at the mediator’s hourly rate for the mediator’s time in connection with opposition.
g. No video or audio recording shall be made of any mediation sessions whether
in person, virtual (i.e.Zoom,Facetime, Microsoft Teams, Bluejeans, etc.),or by telephone. Photographs and/or screenshots shall not be taken by any party or participant without consent of all participants and the mediator.
4.Role of Mediator.
a.The parties agree and understand that the role of the mediator will be to assist
the parties in attempting to resolve the issues in dispute to the end that they might reach agreement.
b. The mediator will not render legal advice to either party or to the parties
collectively. The mediator does not represent either party as an attorney. In fact, in functioning as a mediator, the mediator is not rendering legal advice or functioning as an attorney.
c. At the conclusion of the mediation, if the parties have reached an agreement,
the mediator will prepare and forward to the parties a Memorandum of Understanding which memorializes the oral agreements reached during the mediation sessions. That memorandum or form of agreement will not be signed by the parties and is not a binding agreement.The parties will thereafter have the memorandum reviewed by their respective attorneys so that it might be put in final, legal form that is acceptable to both parties and their attorneys.
5. Consultants/Other Professionals. Persons other than the mediator such as child custody and parenting time specialists, financial advisors, forensic accountants, attorneys with other areas of specialization, etc. may be consulted when the parties agree to bring such consultants into the mediation process.The parties further agree to pay such consultants directly for their services on terms to which the parties and the consultant agree in order to assist the parties and the mediator in the mediation process. All consultants who are brought into the mediation process will be required to sign the mediation agreement and are subject to the privilege and confidentiality of the mediation process.
6. Attendance at Mediation Sessions. The parties will be expected to arrange their business and personal affairs to enable them to attend mediation sessions as scheduled. Mediation sessions will be scheduled at the convenience of the parties insofar as possible, taking into consideration the mediator's schedule as well.
7. Notice of Cancellation. Except in the event of illness or emergency, notice of cancellation of mediation sessions must be given by the parties not less than two full business days in advance of the appointment. Otherwise, the parties will be charged in full for the canceled session.
8. Full Disclosure of Financial Information. Each party will be required to provide and disclose fully and accurately all financial information, including financial statements, income tax returns, and similar financial documents requested by the mediator, and all information requested by the other party if the mediator finds that the disclosure may aid the mediation process.The parties are hereby informed that if there are subsequent findings by a court or arbitrator that a party failed to disclose fully and accurately all his or her assets, debts, income, and expenses, such nondisclosure or fraudulent disclosure may constitute grounds for nullifying the agreement.
9.Maintaining the status quo during mediation. The mediation parties/participants agree to participate in mediation in good faith and to maintain the status quo as to all issues until an agreement is reached. The parties agree to not make any changes to the status quo unilaterally without first discussing the same in mediation and obtaining consent of the other party. When property is an issue in the mediation process,neither party will, without the consent of the other,transfer, encumber (loans,mortgages,liens,etc.), conceal, or in any way dispose of real estate or tangible personal property during the pendency of the mediation.
10.SeparateMeetings (Caucuses). The mediator or the parties/participants may request separate meetings (caucuses) when either feels this may help the mediation process. When necessary, the mediator will endeavor to give each party substantially equal time for such meetings, should it be agreed that caucusing may aid the mediation process.Unless agreed in advance by both parties/participants and the mediator, any information provided by a party during an individual session or caucus will not be withheld from the other party. Settlement positions and legal strategy may be kept confidential between the mediator and one party unless otherwise agreed upon.
11.IndependentLegalCounseloftheParties. The parties are encouraged to retain and consult with independent legal counsel early in the mediation process. Legal counsel can help the parties understand applicable law and ascertain the legal parameters of their case to guide them during the mediation process. The mediator will communicate with the attorneys between sessions to apprise them of the procedural status of the mediation, if authorized by the parties, and the mediator determines same to be appropriate and necessary; however, the mediator will not disclose the substance of the mediation discussions to any third-party non-participants without the express consent of all participants. After a final agreement is reached, each party should have the Memorandum of Understanding reviewed by his or her attorney prior to signing a formal,written agreement or consent order. The mediator should not be considered by the parties to be a legal advisor.
12. Termination of Mediation. Mediation is a voluntary process. Either party or the mediator can terminate the mediation process at any time. However, the parties agree that anyone wishing to terminate mediation will do so during the mediation session in order to allow discussion.
13.Impasse. If the parties are unable to reach an agreement about any or all issues, the parties and the mediator will discuss options for resolution of the remaining issues to be resolved. These options may include separate sessions with the mediator, referral of particular issues to other professionals, changing the mediation to arbitration for resolution of certain issues, or suspension or termination of the mediation.
14.Divorce or Post-Divorce Litigation and the Role of the Mediator. The mediator in his capacity as a mediator does not represent the parties in mediation in or out of court, does not provide legal advice, does not file court papers on behalf of either party, and will not appear in court on behalf of either party.
15. Observation forMediationTrainees. We_____consent/_______do not consent to allow a mediator in training to observe one or more mediation sessions. The trainee will only observe the mediation, will not participate or be actively engaged in the mediation session, and is subject to confidentiality and privilege.
16. VIRTUAL/REMOTE MEDIATIONS SESSIONS. If mediation sessions are held
virtually remotely/virtually, the following provisions shall apply:
a. Each participant will be sent an email with instructions as to how to log on and
a link to the virtual session;
b.All permitted participants will be required to identify him/herself when seeking
entry to the video, telephonic, or virtual mediation session.
c. Each party will provide Adriatic Mediation his/her credit or debit card
information prior to the commencement of the mediation which will be charged at the conclusion of the session. The parties agree that the mediator is authorized to charge his/her credit or debit card for services rendered. In the alternative, a party may pay an advanced payment for each two hour session prior to the scheduled mediation session;
d.The privilege and confidentiality of mediation is applicable to all virtual
sessions. No person other than the parties and their attorneys may be present in the room in which they are participating in the virtual mediation session unless there is consent of all participants and the mediator in advance. No one who is not an approved participant can be located in a place where they can see or hear the virtual mediation session.
17.Closing of File. Because mediation is a confidential process,there is no need for your physical or digital file to be retained after the mediation is concluded. Therefore, approximately 30-60 days after the conclusion of your mediation, your entire file will be destroyed. If you provide any original documents that you want returned, you are responsible to notify Adriatic Mediation prior to the conclusion of the mediation or immediately thereafter. You will not be notified of the destruction of your file. The only document that will be retained is a digital copy of your memorandum of understanding, if one is drafted.
18. BindingAgreement. By signing this form of agreement, you agree that this is a legally binding agreement.