Katie Brophy sent the following email to me and others, which I am passing on with her permission: "At the recent KBA update, Lawyers Mutual indicated increasing claims were coming as a result of clients claiming their mediated divorce related agreements were unfair and their lawyer was to blame. Here is a draft I prepared to address the issue. Am looking forward to comments and suggestions."
The disclosure form she is working on is at the bottom of this post. Post a comment below or contact her directly for private feedback.
My two cents: Across the country we are hearing of complaints of pressure to settle. (1) Maybe it's time to combine the ADR sections of bar associations with the litigation and family law sections. (2) Not only do the mediators need CLE and brainstorming among themselves, but advocates could use some high quality CLE on negotiation and helping the mediators get the cases settled. (3) We are behind the times using evaluative mediation as the method of choice. (4) Maybe, just maybe, retired judges and active practitioners in the subject matter aren't the best we can do when selecting mediators for our cases.
MEDIATION DISCLOSURE AND ACKNOWLEDGMENT
Mediation has been scheduled in your case. In some instances, mediation is mandatory (Court ordered), while in other situations, mediation is voluntary. Regardless, mediation has many benefits, but there are some issues about which you should be aware.
Since mediation can be very stressful, do not plan to skip nourishment before or during mediation. Your decision-making ability depends on your physical and emotional well-being. Take appropriate steps to be as comfortable and at ease throughout the process, as possible.
If you are responsible for the care of others, e.g., children or pets, make arrangements for their care or advise the mediator of your specific time limitations at the beginning of the mediation.
In order to prepare for mediation, you should be well-rested and free from the influence of any mood or mind-altering medications.
Additionally, please note:
The mediator cannot force, make or require you to sign a settlement agreement incident to mediation. The mediator is a neutral person who assists parties in negotiations. The mediator cannot disclose any information to the Court other than whether a full or partial agreement was reached and this is done by the mediator, in written form.
If you and the other party reach an agreement on some or all issues, a written agreement will generally be prepared for your signature at the conclusion of the mediation session. If you sign an agreement at mediation, you will be bound to the terms. The Court will accept the agreement and will not allow either party to withdraw his/her consent or modify the terms of the agreement, unilaterally. Typically, the mediated agreement will be entered by the Judge in your case as a Court Order. Failure to comply with the terms of such a Court Order, can warrant contempt sanctions against the party who fails to comply.
You are under no obligation to settle your case during mediation. However, if a mediated agreement is signed, it will be your decision. Neither your attorney, the mediator or any third party can compel you to settle your case. Do not sign a settlement for any reason other than you want to do so.
If a mediated settlement is reached in whole or in part, you will generally be precluded from obtaining discovery or other information regarding the settled issues. Thus, if further information/documentation is desired by you on an issue, you are responsible raising this issue and discussing it fully with me prior to signing the agreement.
Depending on the issues in your case, a Court may be allowed to modify the mediated agreement in the future under certain circumstances, e.g., child support, custody, visitation. Be sure to discuss with me prior to mediation, the types of issues which could be modified in the future and the legal requirements for modification. In addition, laws change over time and such changes may effectively modify your agreement. It is not possible however, to foresee the future and the changes which may occur. Thus, there is some prospective uncertainty to any agreement reached in the present.
During mediation, you may need advice from another professional, such as, a certified public accountant, tax preparer, mortgage broker or Realtor. As an attorney, I cannot give you advice in specialized fields. It may be prudent for you to contact one or more of these professionals, in advance, and arrange for a telephone conference, if necessary, during mediation.
If professional advice is necessary, but unavailable to you during mediation, you have the right to delay signing any agreement you reach in order to obtain the required advice or information.
KATIE MARIE BROPHY
Attorney at Law
101 N. Seventh Street
Louisville, Kentucky 40202
Please sign and return one copy of this document to my office (an envelope is enclosed), indicating you have read and considered the information provided. The additional copy is for your records.