This is an agreement between _____________ and _____________ (“the parties”) who desire to enter into mediation under the auspices of Franklin R. Garfield (“the mediator”) with the intention of resolving all issues arising from the contemplated dissolution of their marriage. The parties and the mediator agree as follows:
- Nature of Mediation. Mediation is a process in which the mediator assists the parties to reach agreement on all issues in a collaborative manner. The mediator has no power to decide issues for the parties.
- Scope of Mediation. The parties will determine the scope of the mediation and, with the assistance of the mediator, identify the issues to be resolved as early as possible in mediation.
- Voluntariness of Mediation. The parties will try to resolve their situation through mediation. However, mediation is voluntary. Either party may withdraw from mediation at any time for any reason.
- Legal Advice. Mediation is not a substitute for independent legal advice. The parties are encouraged to obtain independent legal advice throughout the mediation process as well as independent legal review of any mediated agreement prior to signing that agreement.
- Confidentiality. The mediation process is confidential. Anything said by the parties in
mediation may not be disclosed by the mediator to any third party unless the mediator is
compelled to do so by valid court order. The mediation shall be governed by the provisions
of Section 1119 of the California Evidence Code, which provides in pertinent part as follows:
- No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
- No writing, as defined in Section 250, that is prepared for the purpose of, in the course
of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to
discovery, and disclosure of the writing shall not be compelled, in any arbitration,
administrative adjudication, civil action, or other noncriminal proceeding in which,
pursuant to law, testimony can be compelled to be given.
The parties have been informed that all forms adopted for use in dissolution proceedings by the Judicial Council of California, including, specifically, the parties’ disclosure documents (Schedule of Assets and Debts and Income and Expense Declaration) are not confidential, and may be used by either party for any purpose in accordance with the laws of the State of California.
- All communications, negotiations, or settlement discussions by and between
participants in the course of a mediation or a mediation consultation shall remain
The mediator will not be called as a witness by either party in any criminal, civil, or administrative action.
There is an obvious exception to the foregoing provisions. Documents prepared during the course of mediation that the parties intend to be binding and enforceable agreements (and hence admissible and subject to discovery) will contain a clause in substantially the following form:
The foregoing document shall not be inadmissible in a court of law, or otherwise protected from disclosure, pursuant to the provisions of §1119(b) of the California Evidence Code. This document shall expressly be deemed admissible in a court of law and otherwise subject to disclosure pursuant to the provisions of §1123 of the California Evidence Code.
- This Agreement and the mediator’s statements for services rendered and costs advanced to the parties by the mediator pursuant thereto are not protected from disclosure by mediation confidentiality, and shall be deemed discoverable and admissible into evidence in any civil action pursuant to Section 1123 of the California Evidence Code.
- Caucuses. As part of the mediation process, the parties may agree that it would be helpful for the mediator to confer with each of them individually. This technique is referred to as a caucus. The form of a caucus varies: It can involve conferences scheduled separately with each party (either in person or by telephone) or brief meetings that take place during the course of a mediation session. The mediator will not caucus with either party unless he has the consent of both parties. Nothing said to the mediator by either party is confidential from the other party unless the parties agree that such communications may be treated as confidential.
- Full Disclosure. Section 721 of the California Family Code specifies that a husband and wife are in a fiduciary relationship that imposes a duty of the highest good faith and fair dealing on each of them and that prohibits either of them from taking any unfair advantage of the other. This duty includes the obligation to make full disclosure to the other spouse of all material facts and information regarding the existence, characterization, and valuation of all assets and debts.
- Valuation. The mediator will not be requested or required to investigate or confirm the identity or value of the parties’ assets or the identity and amount of their liabilities, or the amount of the parties’ income or expenses. The parties reserve their rights to have any of these matters investigated or confirmed by a third party (for example, an attorney, accountant, appraiser, actuary, etc.)
- Attorneys. Upon the request of either party, the mediator will provide the parties’ attorneys with copies of summary letters, draft agreements, and other documents pertinent to the mediation process.
- Appointment of Mediator. The parties hereby retain Franklin R. Garfield, attorney at law, as the mediator. Even though the mediator is an attorney, the mediator does not represent both parties jointly or either party individually.
- Qualifications. The mediator’s education and experience are summarized in his professional resume, which has been provided to each of the parties.
- Standards of Practice. The mediator adheres to the Standards of Practice for Family and Divorce Mediation promulgated by the Academy of Family Mediators (now known as the Association for Conflict Resolution) of which the mediator is a Practitioner Member.
- Services. The mediator will meet with the parties in session and help them identify issues, develop options for resolving those issues, and reach agreement; the mediator will provide the parties with letters after each session summarizing the parties’ tentative agreements, the work that must be done by the parties and the mediator before the next session, and the issues that will be discussed at the next session. At the appropriate time, the mediator will prepare a draft of the parties’ settlement agreement. At the request of the parties, the mediator will prepare all forms necessary to initiate and process an action for dissolution of marriage, including a stipulated Judgment of Dissolution of Marriage.
- Closed Files. In furtherance of the public policy of the State of California to protect the confidentiality of the mediation process, the mediator does not retain closed files. The parties will be provided with copies of their marital settlement agreement and Judgment of Dissolution of Marriage. All other documents in the file will be destroyed 30 days after the Judgment has been signed by the parties.
- Retainer. The parties shall advance a retainer in the amount of $_______, payable half by each party prior to the first mediation session, subject to reallocation by further agreement of the parties or, failing agreement between parties, by the Court. Any unused portion of the retainer is fully refundable to the party or parties who paid it.
- Hourly Rate. The mediator shall be compensated at the rate of $____ per hour for all time spent in connection with the mediation process .
- Costs. The mediator shall be reimbursed by the parties for all costs incurred in connection with the mediation process (e.g., copying charges, filing fees, etc.).
- Monthly Statements. The mediator will send monthly statements to the parties itemizing the services performed, the time spent and the charges therefor, plus any costs that may have been advanced by the mediator.
- Payment. The parties shall be jointly and severably liable for the mediator’s charges, although the parties may make a different agreement with respect to responsibility for payment as between themselves.
Executed on __________, 2012 at Los Angeles, California.
Franklin R. Garfield