Divorce Mediation Flashcards

Vocabulary flashcards for divorce mediation based on lecture notes.

Mediation

A cooperative process with a neutral third-party facilitator, aiming for voluntary, informed, and durable agreements, emphasizing empowerment, self-determination, and ownership of the outcome.

Advantages of Mediation

Private, confidential, faster, less adversarial than court; customizable, child-sensitive, enhances communication and problem-solving skills, retains party autonomy.

Confidentiality in Mediation

Information shared is not admissible in court (with exceptions); mediator cannot be subpoenaed without a court order; limitations: threats of violence/suicide, child abuse/neglect, and other mandated reporting.

Voluntary Participation & Self-Determination in Mediation

Mediation is voluntary, even when court-referred; participants can withdraw at any time; decisions must be informed and uncoerced.

Role of the Mediator

Guides process, facilitates communication, ensures safety, remains impartial, cannot give legal advice, recommends independent legal counsel, assists with promoting children's best interests.

Role of Attorneys in Mediation

Offer legal advice, help prepare for mediation, review agreements, may attend sessions but generally do not dominate discussion.

Agreement to Mediate

Signed at the start; outlines fees, confidentiality, voluntary nature, and mediator's role.

R.S. 9:332

Allows court-ordered mediation in custody/visitation cases; mediators have privilege.

R.S. 9:333

Sets out duties of mediators.

R.S. 9:334

Mediator qualifications: education, general training, specialized family mediation training, and experience.

Civil Code Art. 134

“Best interest of the child” factors—primary consideration in custody matters.

Phase 1: Introduction (Mediation)

Explain process, confidentiality, voluntariness; establish rapport, trust, and safety; emphasize mutual respect and open-mindedness; review and sign agreement to mediate.

Phase 2: Storytelling / Issue Identification (Mediation)

Parties tell their stories without interruption; mediator normalizes conflict, identifies needs and goals; encourages "I" statements and active listening; mediator formulates a neutral summary or goal statement.

Phase 3: Problem Solving / Generating Options (Mediation)

Brainstorming all possible options; explore interests (not just positions); evaluate solutions based on feasibility and fairness.

Phase 4: Memorandum of Understanding (MOU)

Specific, action-based, written agreement; includes contingencies and terms of modification; reviewed by attorneys; may be submitted to court for final approval.

Major Areas of Focus in Family Mediation (Divorce and Custody)

Physical/legal custody, visitation, child support, parenting plans.

Parenting Plans

Prioritize child's developmental needs and continuity; address holidays, school-year/summer schedules, and dispute resolution mechanisms.

Incorporating Developmental Needs in Mediation

Child’s age, emotional/physical health, and special needs are considered; participation of children must meet ethical standards.

High-Conflict Personalities in Mediation

Understand and manage behavior linked to personality disorders; use structure, boundaries, and validation techniques; refer parties to mental health professionals when needed.

Parent Coordination

Post-mediation support to help implement parenting plans; may have limited decision-making authority in some jurisdictions.

Nesting

Children stay in one home while parents rotate—usually temporary due to practicality concerns.

Standard I: Self-Determination

Mediation must empower voluntary and informed decision-making; participants may withdraw at any time; mediator must never coerce a settlement; encourages outside advice.

Standard II: Mediator Qualifications

Must be trained in family law, child development, domestic abuse/child abuse, mediation theory and cultural competency; must disclose training and credentials.

Standard III: Understanding the Process

Explain process and goals; clarify impartiality; discuss confidentiality and exceptions; address presence of others; review right to terminate; confirm parties' capacity.

Standard IV: Impartiality

Avoid favoritism or bias; disclose conflicts of interest; withdraw if impartiality is compromised; guard against biases based on personal characteristics.

Standard V: Fees

Clearly explain costs upfront; prohibit contingent fees or referral bonuses; refund unearned fees upon termination.

Standard VI: Informed Decision-Making

Help ensure decisions are based on accurate information; encourage use of independent advisors; mediator clarifies factual info, not legal advice.

Standard VII: Confidentiality

Maintain confidentiality unless required by law or participants agree; clarify rules before mediation; may not testify or release records without court order.

Standard VIII: Best Interests of Children

Encourage options that promote well-being; adjust parenting plans over time; avoid involving children unless ethically appropriate.

Standard IX: Child Abuse & Neglect

Recognize signs of abuse/neglect; report when required; avoid cases beyond training; consider suspending/terminating mediation if needed.

Standard X: Domestic Abuse

Screen for domestic violence; use safety measures (separate sessions, legal advocates); terminate if abuse undermines participation; avoid without proper training.

Standard XI: Termination of Mediation

Terminate if participant is impaired or unsafe; mediation is used for unlawful purposes or coercion; agreement is unconscionable or impartiality is compromised; minimize harm.

Standard XII: Truth in Advertising

No false guarantees; accurate representation of qualifications and credentials.

Standard XIII: Professional Competence

Commit to ongoing education, training, and self-assessment; participate in mentoring and peer consultation.