Setting Ground Rules in Divorce Mediation

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One thing people wonder about a lot when it comes to divorce mediation is what actually happens during the sessions. Here at the Weinberger Mediation Center, we’ve been giving you an inside picture with our ongoing series about Stacey and Derek, a divorcing couple going through mediation. To help you gain an even better understanding of what happens in mediation, we’re going to pause from their story now and then to take a closer look at certain aspects of the process. For example, we saw that in their first session, the mediator made an introductory statement that included a review of the mediation “ground rules.”

So what exactly are ground rules, and why do they exist? 

Here is a list of common mediation ground rules, along with a brief explanation of each rule’s function:

  • An agreement that only one person speaks at a time. Sometimes the speaker will be one of the parties and sometimes it will be the mediator. Sometimes it will even be someone else who is attending the mediation session. Since it is virtually impossible to speak and listen at the same time, this rule ensures that the speaker has the full attention of the listeners. The mediator will often advise the listening party to jot down notes so that when their turn to speak comes around, they have their own points organized and ready.
  • An agreement that parties do not interrupt one another. Note that this is a little bit different than the previous rule in that this rule applies specifically to the parties. An agreement not to interrupt tends to ensure that only one person speaks at a time, but the mediator generally retains the right to interrupt, because it is the mediator’s job to keep things on track.
  • An agreement that all participants speak respectfully to and about one another. This is for the obvious purpose of maintaining a civil environment free of emotional or verbal abuse. Respectful communication means no yelling, and no resorting to foul language or personal attacks.
  • An agreement regarding confidentiality. The mediator will explain exactly what the law requires regarding confidentiality of all information presented in the mediation, as well as the requirements of any confidentiality provisions that exist in your signed agreement.
  • Rules regarding breaks and separate caucuses with the mediator. A “caucus” is an individual meeting between the mediator and one of the parties. In general, the mediator will not share information learned in such a meeting without the party’s permission.
  • An agreement not to file any papers in court without first informing the other party and the mediator. Taking one issue out of mediation for a court opinion does not always mean that the parties are unable to mediate their remaining issues, though it does tend to make it more difficult, simply because of the increase in conflict generated by adversarial motions or hearings. If an impasse is reached on an issue, there may ultimately be no recourse other than filing papers in court, but filing papers without full disclosure and without first making every effort to resolve the issue in mediation is antithetical to the collaborative spirit that is an integral part of the mediation process.

Do you have questions about ground rules in mediation or about any other aspect of the process? Contact a family law mediator at Weinberger Mediation Center for a free consultation.

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