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Keeping Mediation Fair:

Full Disclosure in the Agreement to Mediate

We hope you had a chance to read our November article about confidentiality and the powerful role it can play in mediation. The provisions for confidentiality are usually contained in the Agreement to Mediate, which is reviewed and agreed to prior to mediation. This is an important document which sets forth the ground rules for the parties as they enter mediation, and helps to ensure that the parties can bring both candor and a spirit of compromise to mediation without worry that the information they share will be disclosed in a way that will compromise their position in future court proceedings.

Another key element to the Agreement to Mediate is the paragraph on Full Disclosure. In our Redwood Mediation Agreement, we ask clients to be forthcoming with the information that forms the basis of their planning, negotiation and ultimate agreement. It reads:

Full Disclosure

Each party agrees to disclose all relevant information and writings fully and honestly as requested by the mediator and all information requested by any other party, if the mediator determines that the disclosure is relevant to the mediation discussions. In family mediation cases, each party agrees to disclose all income, assets and debts fully and accurately.

On first glance, the inclusion of this full-disclosure section in the Agreement to Mediate seems to be in conflict with the principal of confidentiality, one describing what must be shared, and the other outlining what cannot be shared. However, each of these, confidentiality and full disclosure are crucial to success in family law mediation.

To understand this duty to disclose information as part of the mediation process, one only need to focus on the lack of fairness in a negotiation where one party has all the information and the other does not. As parties attempt to come to a full agreement on the issues, particularly financial issues, they must be able to trust that the discussions and concessions are based on an accurate picture of the circumstances of the parties involved. Otherwise, perception that the mediation session is fair and reasonable will be lost, and the entire process will be undermined.

In signing the Agreement to Mediate, parties are asked to obligate themselves to share important financial facts and documents with the mediator and the other party. Unlike the information that might be guarded by the duty of confidentiality, the information parties are asked to disclose most often has to do with painting a true picture of the family’s financial situation. Here are two examples. In one, the party would be protected by confidentiality, and in the other, the party is obligated to disclose information to the mediator and to the other party.

Sam and Jessica are in mediation to iron out a Stipulation and Settlement Agreement to submit to the judge in their divorce case. On the subject of alimony, Sam offers to forgo alimony in favor of taking over the house including the equity. If the matter later goes to the judge to decide, can Jessica argue that Sam doesn’t need alimony because in mediation, he agreed to go without it? The answer is no. Discussions and offers which happen in mediation must be kept confidential by all parties.

Sam and Jessica arrive for mediation with their divorce questionnaires filled out…mostly. Where the form asks about her employment, Jessica listed her last job. However, since filling out the form, she has started a new job with a different salary. Must Jessica disclose this information? The answer is yes. Both parties must disclose financial information fully and honestly.

One can imagine many scenarios in which the parties are reluctant to disclose financial information, particularly when it may become part of a public record. Still, the parties are required to provide the information asked for by the mediator. Disclosing financial information cannot be avoided by simply refusing to mediate. In fact, it is more likely that embracing the mediation process will result in less information becoming a part of the public record than would if a court hearing to determine the same issues is held.

If you find yourself reluctant or worried to share the information that you are asked to provide in the Agreement to Mediate, you may want to hire an attorney to counsel you during the mediation process. An attorney could give specific advice about which documents must be disclosed, and which do not.

While we are on the subject of full disclosure, we would like to offer the suggestion that both you and your spouse spend the time to fill out the divorce questionnaire carefully and fully before the mediation session when both parties are self-represented. When attorneys are involved, it is important that information is exchanged in advance of the mediation if at all possible. At a minimum, each party must make certain their own attorney has all of the relevant documents and information. Imagine how disconcerting it must be for a party to be paying an attorney and a mediator by the hour when their ex failed to provide the needed documents to his or her attorney. Get off to a good start in mediation by providing the information requested by your attorney and the mediator fully and honestly.

Some final thoughts...

Many of us roll into every new year, full of hope and determination to improve, be kinder, achieve new goals and generally make more of our lives. As January wraps up, it is easy to lose sight of the reasons why we want to make a change. Participating in mediation in order to plan for your family and provide for your future self can help you to make a fresh start. At Redwood Mediation & Law we are here to help you make that fresh start a great start. If you would like to learn more about our services, please reach out to us at Redwood Mediation & Law. We would love to hear from you.

Sunlight over a new layer of crisp, white snow---a fresh start.

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