Mediation Procedures

Thank you for considering Harding & Associates to assist you with the mediation of your divorce. We look forward to working with both of you, and facilitating a swift and economical resolution of your family law matter. Below is an overview of what you can expect during the mediation.

MEDIATION AT HARDING & ASSOCIATES
(A Step by Step Approach to our Mediation Procedures)

A. CLIENT ORIENTATION

First we will schedule an orientation session with both parties. If the other party does not know about mediation or does not initially want to mediate, you can request that we make contact with the other party to start the mediation. You may John Harding directly at 925-417-2202. Or you may complete our online form.

At the orientation both parties, meeting together with the prospective mediator, will be introduced to the mediation process through the following:

ORIENTATION PHASE I (NO CHARGE)

  • Receive client packet
  • Discuss questions/concerns related to mediation
  • Choose mediator
  • Schedule appointments with selected mediator
  • Sign mediation agreement
  • Visit Client Library
  • Receive Phase II Orientation Packet

Once both parties have completed Orientation Phase I, there is a one time administrative start-up fee of $75 per party. You then may want to schedule Orientation Phase II in order to receive assistance in filling out the necessary paperwork in preparation for the mediation. Orientation Phase II includes the following:

ORIENTATION PHASE II (OPTIONAL)

  • Receive assistance in filling out necessary paperwork.
  • Gather information in preparation for the mediation

B. MEDIATION LIBRARY

Harding & Associates clients can educate themselves by visiting our mediation library, where you can find:

  • Do-It-Yourself Law Books
  • Self-Help books that can help with emotional aspects.
  • Children’s books on topics related to the conflicted issues.
  • Mediation and negotiation books
  • Learning videos

C. MEDIATION SESSIONS

Mediation sessions are 1-4 hours in length. The mediator helps the parties resolve conflict by: 1) providing a safe place for the parties to communicate; 2) helps the parties create options for resolutions; and 3) helps the parties think about open issues from different perspectives.

All communications during and associated with your mediation are confidential and can never be used against you in a court of law. Most divorce mediations last between three to six sessions.

After orientation, parties will meet with their selected mediator for their first joint mediation session. The mediator will be familiar with the necessary background information of the parties.

After the first joint session, the mediator will then conduct individual or joint sessions as agreed until settlement is reached.

D. POST-MEDIATION

Summary Letters: When the mediation sessions end, the mediator will prepare summary letters for both clients. The mediator will mail these letters to the clients.

Deal Memo: At the end of the mediation, the mediator will prepare a Memorandum that incorporates the critical points of the agreement. Once the parties sign, this becomes a binding contract.

E. DRAFTING OF LEGAL DOCUMENTS

At your request, Harding & Associates will draft the divorce court documents, including starting papers, judgment, agreements, disclosures, deeds, etc However, you can have documents prepared by any lawyer, paralegal, or you could even do them yourself.

F. FEES AND PAYMENT INFORMATION

  • Phase I Orientation: No Charge
  • Administrative Start-Up Fee: $75 per Party
  • Phase II Orientation (Optional): $150 Per Hour Per Party
  • Convening non-participating party: $150 Per Hour Per Party
  • Mediation sessions: Per Selected Mediator’s Hourly Rate
  • Clients will be billed at the conclusion, along with sending out of summaries, of each session. Payment must be made in full before the next session will be convened.
  • All telephone calls between the clients and the mediator will be charged in .6 increments of the mediator’s hourly rate.
  • Drafting of legal documents is charged at $150 Per Hour Per Party.
  • Court appearances are (including travel time) are charged at $150 Per Hour Per Party.

G. COURT APPEARANCE

With successful negotiation of a settlement agreement, it is possible to complete the entire divorce case with the court through the mail. In some instances the parties may prefer that a court hearing be conducted. The main reason for a hearing is that the final paperwork is usually processed by the court at the hearing. While submitting the paperwork to the court through the mail can result in a turn around time of several months.

If a court prove up hearing is preferred, one party will appear in court and explain the substance of the agreements arrived at; then present the final paperwork to the court for filing. At your request, your mediator will accompany you to court, appear at the hearing as a “friend of the court” (rather than appearing as the attorney for either party), and then present the case to the court on behalf of both parties.

H. CONTRACTING WITH THE MEDIATOR

The mediation process must be formalized, and is initiated, by the completion of a contract. Below is a sample copy of our mediation agreement.

SAMPLE AGREEMENT TO MEDIATE

I have read the attached Mediation Agreement completely and understand its contents. I have initialed each page to indicate my understanding and agreement of the terms.

This is an agreement between Harding & Associates and John E. Harding, J.D., hereinafter “mediator” and PARTY 1, PARTY 2, hereinafter “parties,” to enter into mediation with the intent of resolving issues related to: CASE NAME.

John E. Harding, J.D. Rate: $300 per hour.

[$150 per hour, per party]

__________________ __________________________
Dated MEDIATOR

__________________ __________________________
Dated PARTY #1

__________________ __________________________
Dated PARTY #2

SAMPLE MEDIATION AGREEMENT

Harding & Associates, the parties and the mediator understand and agree as follows:

1. ESTABLISHMENT OF MEDIATION RELATIONSHIP

The undersigned wish to retain the services of Harding & Associates to mediate disputed issues.

All references to “mediator” apply to Harding & Associates, John E. Harding, J.D., and any person designated by the mediator to assist in the mediation process, such as a Dispute Resolution Associate.

2. NATURE OF MEDIATION

The parties understand that mediation is an agreement-reaching process in which the mediator assists parties to reach agreement in a collaborative, consensual and informed manner. It is understood that the mediator has no power to decide disputed issues for the parties. The parties understand that the mediator’s objective is to facilitate the parties themselves reaching their most constructive and fairest agreement.

3. RIGHT OF CONSULTATION WITH LAWYER

During the mediation, the parties are each encouraged to consult or be represented by a lawyer at any time, especially before signing the final settlement agreement. Parties are entitled to the confidentiality of any communication with their attorney(s).

4. MEDIATOR REPRESENTS NEITHER PARTY

The parties acknowledge that the mediator does not represent the interests of either party and is not acting as an attorney. The parties acknowledge that the purpose of mediation is to facilitate the ultimate resolution and agreement between the parties regarding the issues, problems, and disputes presented in mediation and that the mediator does not act as an advocate, representative, fiduciary, lawyer, or therapist for either party.

5. IMPARTIALITY OF MEDIATOR

The parties acknowledge that, although the mediator will be impartial and that the mediator does not favor either party, there may be issues in which one party may be reasonable and the other may not be reasonable. The mediator has a duty to assure a balanced dialogue and to diffuse any manipulative or intimidating tactics.

6. CONFIDENTIALITY

It is understood between the parties and the mediator that the mediation will be strictly confidential. Mediation discussions, written and oral communications, any draft resolutions, and any unsigned mediated agreements shall not be admissible in any court proceedings. Only a mediated agreement, signed by the parties may be so admissible. The parties further agree to not call the mediator to testify concerning the mediation or to provide any materials from the mediation in any court proceeding between the parties. The mediation is considered by the parties and the mediator as settlement negotiations. The parties understand the mediator has an ethical responsibility to break confidentiality if s/he suspects another person may be in danger of harm. The only other exceptions to this confidentiality of the mediation are with regard to the mediator’s duty to report reasonable suspicion of child abuse and domestic violence; the mediator’s ability to defend himself/herself in any legal action; in the event of a joint written waiver of confidentiality by the parties; or otherwise as may be required by law.

7. RIGHT OF MEDIATOR TO WITHDRAW

The mediator will attempt to resolve any outstanding disputes between the parties as long as both parties make a good faith effort to reach an agreement based on fairness to both parties. Parties must be willing and able to participate in the process. The mediated agreement requires compromise, and parties agree to attempt to be flexible and open to new possibilities for a resolution of the dispute. If the mediator, in his or her professional judgment, concludes that agreement is not possible or that continuation of the mediation process would harm or prejudice one or all of the participants, the mediator shall withdraw and the mediation conclude.

8. TERMINATION OF MEDIATION WITHOUT CAUSE

The mediation may be terminated without cause by any party at any time. No reason must be given, either to the other parties or to the mediator. A decision to terminate mediation must be made in writing. Mediation may not resume following said notification, unless expressly authorized in writing by all parties.

Upon termination of mediation for any reason, the mediator agrees not to counsel either party or represent any party against any other party, in any court proceeding, adversary negotiation, or for any other reason involving a dispute between the parties.

9. VOLUNTARY DISCLOSURE OF POSSIBLE PREJUDICIAL INFORMATION

The parties agree that, while mediation is in progress, full disclosure of all information is essential to a successful resolution of the issues. Since the court process may not be used to compel information, any agreement made through mediation may be rescinded in whole or in part if one party fails to disclose relevant information during the mediation process. Since the voluntary disclosure of this information may give one party an advantage that may not have been obtained through the traditional adversarial process, the parties agree to release and hold harmless the mediator from any liability or damages caused by voluntary disclosure of prejudicial information in the mediation process that may be used in subsequent negotiations or court proceedings. The mediator has no power to bind third parties not to disclose information furnished during mediation.

10. THE MEDIATOR DOES NOT PROMISE RESULTS

Each party acknowledges that, since mediation is a process of compromise, it is possible that any party might agree to settle on terms that might be considered to be less favorable in comparison to what they party might have received from a Judge after a contested court hearing, or through negotiation in which one or all of the parties have retained legal counsel. The mediator makes no representations that the ultimate result would be the same in kind or degree as might be concluded through negotiation or a contested trial on one or all of the issues. Any questions concerning fairness should be addressed to the mediator as they occur. In addition, parties should consult with independent legal counsel to review compromises made during the course of mediation, and all provisions of a final agreement prior to executing any court documents.

11. FILING OF COURT DOCUMENTS

Once an agreement is reached, in whole or in part, or at any time the parties desire to file any court documents to confirm the agreement and to obtain court order or judgment based thereon, the parties understand that the mediator may not represent either party in a court of law. However, the parties agree that if the parties are represented by counsel, or act as their own attorney(s) In Pro Per, the parties may authorize Harding & Associates to neutrally prepare court papers and to monitor all paperwork through the court system. In performing such work, Harding & Associates is performing its neutral mediator function and will take no action without the mutual agreement and authorization of all parties.
The parties may also, as part of their dissolution, prefer to have an uncontested, or default hearing, before a judge. If mutually agreed by the parties the mediator may appear at the hearing as a friend of the court, and not as the attorney for either party, for the purpose of making legal and factual recitations to the court, for the purpose of explaining the agreement of the parties to the court, and for the purpose of assisting the parties in obtaining a court order or judgment.

12. MEDIATION FEES

The parties agree that the administrative start-up fee is $75 per party (flat fee). Payment is due upon signing of this agreement.

The client(s) agree that the fee for contacting and attempting to convene necessary parties to the mediation is $150 per each party you wish for us to contact.

The parties and the mediator agree that the fee for the mediator shall be $300 per hour, ($150 per hour, per party) for time spent with the parties and for all other time spent on the matter, including time to study documents, research issues, correspond, telephone call, prepare draft and final agreements, and do such other things as may be reasonably necessary to facilitate the parties’ reaching full agreement. Time is billed in six minute increments. Payments of fees are due prior to each mediation session based on the mediator’s hourly rate and expected length of session.

The parties shall be jointly and severally liable for the mediator’s fees and expenses.

Should payment not be timely made, Harding & Associates may stop all work on behalf of the parties, including the drafting and/or distribution of the parties’ agreement, and withdraw from the mediation. If collection or court action is taken by the mediator to collect fees and/or expenses under this agreement, the prevailing party in any such action and upon any appeal therefrom shall be entitled to attorney fees and costs therein incurred.

13. BINDING ARBITRATION

All disputes between Harding & Associates, the mediator, and the parties regarding any aspect of our professional relationship will be resolved by binding arbitration administered through the County Bar Association pursuant to the California Code of Civil Procedure and not by litigation in court. By this provision, the parties and Harding & Associates are both giving up the right to have any such dispute decided by a judge or a jury and we are each giving up the right of appeal.

The prevailing party in any arbitration between us will be entitled to reasonable attorney’s fees and costs. Any litigation or arbitration between us will take place in Alameda County, and California State law will apply.

It is important for you to know that under current California law a mediator has complete immunity from suits regarding negligence or malpractice or any other cause of action. This means that you cannot sue our mediators for any damage to you arising out of the mediation relationship.

Before signing this agreement, you have a right to consult your own attorney about the legal consequences to you of signing this agreement and specifically waiving the right to use the courts in any fee dispute and using arbitration instead.

14. MEDIATOR’S FEES

Should it be necessary to institute any legal action or arbitration for the enforcement of this agreement, the prevailing party shall be entitled to receive all court costs and reasonable attorneys fees incurred in such action from the other party.

15. EXECUTION OF MEDIATION AGREEMENT

By signing this Mediation Agreement, each party agrees that he or she has carefully read and considered each and every provision of this Agreement and agrees to each provision of this agreement without reservation.

9. STARTING YOUR DIVORCE MEDIATION

Having decided to complete your divorce with mediation, it is necessary to get the mediation started. Step one is for one of the parties to contact our office so that we may schedule the orientation session. If the other party does not know about mediation or does not initially want to mediate, you can request that we make contact with the other party to start the mediation. You may contact John Harding directly at 925-417-2202. Or you may complete our online form. After the initial contact, arrangements will be made the schedule the orientation session, and get the process rolling.


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