What is mediation and why should you care?
Minnesota General Rule of Practice 114.02(a)(7) defines mediation as a “forum in which a neutral third party facilitates communication between parties to promote settlement.” See also Minn. Gen. R. Prac. 303.03(c). A “neutral third party” essentially acts as a referee in a participant-motivated conversation where the parties determine the interests to discuss. The process allows participants to retain their autonomy and authority to make decisions for themselves regarding where the conversation goes and what agreements will be made. The neutral provides assistance in identifying individual and common interests and needs, and facilitates and assists in their resolution.
A family law mediator will have knowledge in family law and training on the impact of family conflict on parents and children, including child development, violence, abuse, and neglect. They are called “Minnesota Rule 114 qualified neutrals” and the names of those qualified are on a roster. When seeking a mediator, this roster should be reviewed, and one should consult with experienced attorneys on which neutrals have experience in particular areas of disagreements.
When preparing for mediation, it is important to understand whether domestic violence has occurred, as it can disqualify someone from entering mediation. If it is determined that mediation is still an option, the neutral will have safeguards and protocols in place if they facilitate negotiations of issues between parties who experienced domestic violence. This includes separate arrival and departure times, separate meeting rooms, with the mediator moving from one room to another with client-approved discussions being taken back and forth.
It is important to note that mediation is confidential. The mediator cannot be called upon to testify at legal proceedings between the participants, nor can negotiations be used as evidence in subsequent hearings. Be sure to prepare financial information prior to the mediation. If the dispute focuses on the distribution of property, each participant should know what the present value of the assets and debts are, how they are held, and to whom the debts are owed, and what law is governing the property distribution. If the dispute is about custody and parenting time, each participant should understand the legal concepts involved in custody determinations and what the desired outcome is.
It is sometimes difficult for participants to present issues in a dispassionate manner. Oftentimes a participant needs assistance in identifying what is relevant to a dispute. If you are looking for an attorney who is experienced in assisting participants through mediation, call Arnold, Rodman and Kretchmer, PLLC today at 952-955-8008 to schedule an initial consultation.
Written By: Associate Attorney, Alison Grafsgaard