Does the mediator keep notes during and after the mediation?
Every mediator is different. I take notes during mediation but I do not keep my
notes after the mediation ends. The Agreement to Mediate explains this.
Can parties in the mediation take notes?
Parties may take notes. Our agreement determines what happens to your
personal notes and whether those will be destroyed after mediation is finished.
Can the mediator be ordered to appear in court and testify about what
happened at the mediation?
My Agreement to Mediate states that you agree that I will not be ordered or subpoenaed to testify in court about the mediation. I can tell a court whether
there was mediation or not, but I will not discuss the result.
Are the discussions at the mediation confidential?
Confidentiality means that information obtained through the mediation process cannot be used in court (if mediation is not successful) unless the information
would otherwise have been able to be obtained and disclosed in court through other means. For example, financial records may be obtained through a court document called a subpoena. Even if disclosed in mediation, the same document could be used in court if your attorney (or the court) obtains it through a subpoena. But what a party says during mediation will be confidential because you will agree
to this before we begin.
The Agreement to Mediate states that all oral and written communications between the parties and me, as mediator, are privileged and confidential and cannot be disclosed for any purpose outside of the mediation, including by subpoena. For example, if any document is prepared in connection with the mediation (whether
by an attorney or non-attorney party), the Agreement to Mediate states that the document cannot be disclosed in court nor compelled to be disclosed in court.
Are there disputes which cannot or will not be mediated?
Yes, disputes involving child abuse or neglect, abuse against seniors, and domestic violence will not be mediated by me. If mediation begins and during mediation it is determined there has been child abuse, neglect or abuse against a senior, the mediation will be halted. I have a duty to report the violence to the appropriate authority.
What role does your attorney have in mediation?
Sometimes parties come to mediation with their attorneys. Your attorney has an important role. He or she should help you prepare for mediation, encourage you
to listen with an open mind, offer information (with your permission) which may otherwise be overlooked, and communicate with me, as mediator, to make the mediation as positive as possible. Your attorney will participate in joint sessions
and in private sessions – called caucus – if you instruct him or her to do so.
The attorney may be responsible for writing the mediation settlement agreement.
If you would like to learn more about me and my elder law, estate, and special needs planning law practice, please go to www.bpaelderlaw.com or www.bpasntlaw.com.