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INTRODUCTION

A CHILD'S PRAYER

DIVORCE MEDIATION FAMILY SYSTEMS THERAPY APPROACH

INTAKE FORM

CHILDREN'S BILL OF RIGHTS

MEDIATION SERVICES AGREEMENT

MEDIATIONG IN THE JUVENILE DEPENDENCY COURT

GUIDELINE FOR MEMORANDUM OF AGREEMENT (WITH CHILDREN) PARENTING AGREEMENT

SPECIFIC CONSIDERATIONS IN THE PROCESS OF MEDIATION

I. Before the actual mediation sessions begin, the mediator shall conduct an orientation session to give an overview of the process and to assess the appropriateness of mediation for the participants. Among the topics covered, the mediator shall discuss the following:

A. The mediator shall define the process in context so that the participants understand the differences between mediation and other means of conflict resolution available to them. In defining the process, the mediator shall also distinguish it form therapy or marriage counseling.

B. The mediator shall obtain sufficient information from the participants so they can mutually define the issues to be resolved in mediation.

C. It should be emphasized that the mediator may make suggestions for the participants to consider, such as alternative ways of resolving problems, and may draft proposals for the participants' consideration, but that all decisions are to be made voluntarily by the participants themselves, and the mediator's views are to be given no independent weight or credence.

D. The duties and responsibilities that the mediator and the participants accept in the mediation process shall be agreed upon. The mediator shall instruct the participants that either of them or the mediator has the right to suspend or terminate the process at any time.

E. The mediator shall assess the ability and willingness of the participants to mediate. The mediator has a continuing duty to assess his or her own ability and willingness to undertake mediation with the particular participants and the issues to be mediated. The mediator shall not continue and shall terminate the process, if in his or her judgment, one of the parties is not able or willing to participate in good faith.

F. The mediator shall explain the fees for mediation. It is inappropriate for a mediator to charge a contingency fee or to base the fee on the outcome of the mediation process.

G. The mediator shall inform the participants of the need to employ independent legal counsel for advice throughout the mediation process. The mediator shall inform the participants that the mediator cannot represent either or both of them in a marital dissolution or in any legal action.

H. The mediator shall discuss the issue of separate sessions. The mediator shall reach an understanding with the participants as to whether and under what circumstances the mediator may meet alone with either of them or with any third party. Commentary: The mediator cannot act as lawyer for either party or for them jointly and should make that clear to both parties.

I. It should be brought to the participants' attention that emotions play a part in the decision making process. The mediator shall attempt to elicit from each of the participants a confirmation that each understands the connection between one's own emotions and the bargaining process.

II. The mediator shall not voluntarily disclose information obtained through the mediation process without the prior consent of both participants.

SPECIFIC CONSIDERATIONS:

A. At the outset of mediation, the parties should agree in writing not to require the mediator to disclose to any third party any statements made in the course of mediation. The mediator shall inform the participants that the mediator will not voluntarily disclose to any third party any of the information obtained through the mediation process, unless such disclosure is required by law, without the prior consent of the participants. The mediator also shall inform the parties of the limitations of confidentiality such as statutory or judicially mandated reporting.

B. If subpoenaed or otherwise notified to testify, the mediator shall inform the participants immediately so as to afford them an opportunity to quash the process.

C. The mediator shall inform the participants of the mediator's inability to bind third parties to an agreement not to disclose information furnished during the mediation in the absence of any absolute privilege.

III. The mediator has a duty to be impartial.

SPECIFIC CONSIDERATIONS:

A. The mediator shall not represent either party during or after the mediation process in any legal matters. In the event the mediator has represented one of the parties beforehand, the mediator shall not undertake the mediation.

B. The mediator shall disclose to the participants any biases or strong views relating to the issues being mediated, both in the orientation session and also before these issues are discussed in mediation.

C. The mediator must be impartial as between the mediation participants. The mediator's task is to facilitate the ability of the participants to negotiate their own agreement, while raising questions as to the fairness, equity and feasibility of proposed options for settlement.

The mediator has a duty to ensure that the participants consider fully the best interests of the children, that they understand the consequences of any decision they reach concerning

A CHILD'S PRAYER

Things have been bad

I hear fussing – I hear fighting

Did I do something wrong

Or not do enough?

It's no good for me this way

Let it end-

End it nicely

Tell me together

Do one last thing as a couple

Don't let me find one of you gone

And one of you here and nothing

But questions in the air.

And when you are apart

Don't take me apart with you

Treat me as a child – Don't

Fill me with questions and

Empty me with answers.

Mother talk nice about Daddy

Daddy, please do the same

Remember – I am just a child

And for me, this is no game.

Author: Timothy P. Broussard

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INTRODUCTION TO THE MEDIATION PROCESS

Introduce participants, fill out sign-in and consent forms, help yourself to snacks.

If available, circulate photo of child or children not here

How long the introduction and mediation will take

Purpose of mediation: reach agreement for best possible results for children and families. There will be an agreement only if the parties agree. The agreement will be binding if the Court approves it.

Mediator's Job:

Impartially lead discussion of children and families interests and ways to satisfy interests

Do not make decisions like a Judge

Draft the agreement if the parties reach an agreement

Everyone's Task:

Identify individual and family interests and suggest ideas about ways to satisfy these needs and interests.

Attorney's Task:

Advise Clients at the mediation and help present the client's concerns

Mediation is generally confidential (see attached statute). Major exceptions:

* New reports of child abuse or neglect.

* If someone is about to be seriously hurt.

* Agreement reached in mediation can be admitted in Court.

Possible private meetings:

Mediators—or any participant—may suggest a brief, private meeting.

Let mediators know what, if anything, you want to keep private from the other participants.

Mediators sometimes need to meet separately.

Generally one conversation at a time, please.

Any questions?

Make an Agenda.

What do the child(ren) and family in this case need? What do you want for them?

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DIVORCE MEDIATION

FAMILY SYSTEMS THERAPY APPROACH

In order for a divorced family to function in a way which provides nurturance needed from its members, the restructuring process during legal divorce is a critical phase. Divorce mediation is perhaps the most helpful form of intervention available for the divorcing family having difficulty making the transition. From a "therapeutic" perspective, the focus is to formulate a written set of rules for family interaction developed solely by the parental hierarchy; from a "legal" perspective, the focus is to formulate an agreement which is within appropriate legal parameters. Therefore, family mediators need to understand family functioning in order to intervene in a way that promotes "long term" healthy family functioning as well as to facilitate efficient functioning through the legal system. The danger of not understanding family functioning is to reach a "quick and easy" settlement which may lead to more problems for the family later on-or to be confused, and therefore stuck, about why the parties are unable to reach an agreement.

The Family Systems Therapy approach operates from the belief that the source of the problem is often in the family functioning, and many times the best resource for solving the problem is the family working with a professional family systems intervenor. Rather than assuming that problems result from the individual's inadequacy [a linear medical model], systems therapists believe that problems result from a lack of resources available to respond effectively to stress. The best support system for relieving stress is generally the family. Rather than the therapist trying to develop the individual's strength to handle the stress of the symptoms, the therapist tries to help the family function in a way that gets at "the root of the difficulty" improving the organizational structure and the problem solving skills within the family system, resulting in family members feeling safe and nurtured. With the enhanced structural and problem solving strengths in the family, members will be better able to work together to solve present and future problems.

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DIVORCE MEDIATION/THEORY

DEFINITIONS AND USES:

Mediation is a process for conflict resolution or conflict management; an alternative to violence, self-help, or litigation, it is different from the processes of counseling, negotiation, and arbitration. In the mediation process the participants, with the help of an impartial mediator, systematically identify disputed issues, develop and consider options, and make choices, to reach consensual agreements that will realistically meet the participants' needs and concerns. Mediation is a self-empowering process that emphasizes the participants' responsibility for making decisions that affect their lives.

The mediation process can be defined by a description of predictable stages that include a series of techniques for accomplishing necessary tasks. It is a finite process that produces specific outcomes, using the values, norms, and principles of the participants rather than those of the neutral third-party mediator. The goals of mediation are (1) to reduce, resolve, or manage conflicts and (2) to make appropriate decisions. Mediation includes the following objectives:

1. to reduce the anxiety and other negative effects of the conflict by helping the participants reach a consensual resolution ;

2. to prepare the participants to accept the consequences of their decisions;

3. to produce an agreement or plan that the participants can accept and with which they will comply;

4. to focus on the specifics of how the participants will reduce and resolve the conflict, rather than what causal factors led to the conflict.

Mediation is concerned more with the present and future than with the past.

The fundamental principles of conflict 2 categories:

1) interpersonal

2) interpersonal

The causes and effects of interpersonal conflict are best addressed through counseling. Mediation is most concerned with interpersonal conflict-those disputes that arise between individuals or a group of individuals. Although the issues or options that are discussed during mediation may trigger internal conflicts for participants, it is not the job of the mediator to delve into the realm of interpersonal conflicts unless such conflicts affect the resolution of the issues and options.

R.J. Rummel describes conflict as "the process of powers meeting and balancing". Rummel views conflict as a continuing spiral, set into motion by change and shaped by the type of power or society in which it is manifested. In this view, conflict is inevitable. Resolving conflict requires the use of coercive or non-coercive means to balance the power between the conflicted parties or entities. Rummel further points out that the wish to eliminate all levels of conflict is a desire for a state of unchanging, static balance, which is not common in the natural world and perhaps not even desirable. Mediators ought to convey this to participants to reduce their feeling of guilt and frustration about being involved in a conflict situation and to legitimize the need to change.

Morton Deutsch's analysis of conflict offers a conceptualization that is useful in understanding the development and application of mediation. He describes manifest conflict as overt or expressed, whereas underlying conflict is implicit, hidden or denied. Manifest conflict often involves symbolic components of the underlying conflict but is felt or perceived to be "safer" by one or more of the participants. Mediators must sort out which issues are manifest and which are underlying, to develop effective options and outcomes during the mediation process.

Duetsch also points out that the outcome of conflict is one of three dichotomies: mutual loss (lose-lose); gain for one and loss for the other (lose-win); or mutual gain (win-win). Mediation has a distinct advantage over some methods of conflict resolution because it promotes a win-win outcome.

The degree of divergence is a determining factor in the severity and duration of the conflict and in the likelihood of successful conflict resolution. Conflict resolution and management are processes designed to realign those divergent aims, methods or behaviors. While conflict resolution creates a state of uniformity or convergence of purpose or means, conflict management merely blunts or realigns the divergence. Conflict management does not require that each participant give up individual perceptions and resolve the dispute by creating identical aims, methods, or processes. It simply requires that both participants create agreements that are aligned and sufficiently coordinated to allow unobstructed progress.

Divorce mediators must assess on a case-by-case basis whether the goal for a particular couple is conflict resolution or conflict management. Conflict resolution might be the ideal condition. Mediators may not be able to help all participants resolve their differences but may be able to help them realign their positions to reduce the harmful effects of a continued conflict. Both conflict management and conflict resolution lead to a balanced, but temporary, state between the participants.

Conflict resolution provides convergence, whereas conflict management produces realignment sufficient to render cooperation and does not require total unity. The most desirable conflict resolution and management methods are non-coercive, and address both manifest and underlying conflicts, to prolong the state of equilibrium.

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AMERICAN ACADEMY OF MATRIMONIAL LAWYERS

CHILDREN'S BILL OF RIGHTS

WHEN PARENTS ARE NOT TOGETHER

Every kid has rights, particularly when mom and dad are splitting up. Below are some things parents shouldn't forget --- and kids shouldn't let them ---- when the family is in the midst of a break-up.

You have the right to love both your parents. You also have the right to be loved by both of them. That means you shouldn't feel guilty about wanting to see your dad or your mom at any time. It's important for you to have both parents in your life, particularly during difficult times such as a break-up of your parents.

You do not have to choose one parent over the other. If you have an opinion about which parent you want to live with, let it be known. But nobody can force you to make that choice. If your parents can't work it out, a judge may make the decision for them.

You're entitled to all the feelings you are having. Don't be embarrassed by what you're feeling. It is scary when your parent break up, and you're allowed to be scared. Or angry. Or sad. Or whatever.

You have the right to be in a safe environment. This means that nobody is allowed to put you in danger, either physically or emotionally. If one of your parents is hurting you, tell someone --- either your other parent or a trusted adult like a teacher.

You don't belong in the middle of your parent's break up. Sometimes your parents may get so caught up in their own problems that they forget that you're just a kid, and that you can't handle their adult worries. If they start putting you in the middle of their dispute, remind them that it's their fight, not yours.

Grandparents, aunts, uncles and cousins are still part of your life. Even if you're living with one parent, you can still see relatives on your other parent's side. You'll always be a part of their lives, even if your parents aren't together anymore.

You have the right to be a child. Kids shouldn't worry about adult problems. Concentrate on your school work, your friends, activities, etc. Your mom and dad just need your love. They can handle the rest.

IT IS NOT YOUR FAULT AND DON'T BLAME YOURSELF.

----Special Concerns of Children Committee, March, 1998----

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FAMILY HISTORY

COMPLETE & RETURN TO JANA WILLIAMSON; FAX: 501/624-5118;

835 Central Avenue, Suite 509, Hot Springs, Arkansas, 71901

Case file #:______________ Judge Assigned______________________ County:__________

Marriage Date:__________ Date of Separation:________________/Divorce__________

Scheduled hearing date:_____________________________________

MOTHER: FATHER:

Name___________________________________ Name____________________________

Home Address__________________________ Home Address___________________

___________________________________ ___________________________________

Business phone_________________________ Business phone__________________

Attorneys name________________________ Attorneys name_________________

Attorneys address _____________________ Attorneys address_______________

__________________________________ ___________________________________

Attorneys phone________________________ Attorneys phone_________________

CHILDREN:

NAME DATE OF BIRTH WITH WHOM RESIDING

________________________________________________________________________ __

LEGAL DECISION STATUS:

Date Check

Completed Pending

____________ ______ Dissolution of marriage

____________ ______ Temporary spousal maintenance:_______________________

___________ _______ Sole Custody

___________ _______ Joint Custody

___________ _______ Temporary parental access:______________________________

__________ _______ Temporary child support:_________________________________

_________ ________ Property Settlement_____________________________________

Family History

________ __________ Permanent spousal maintenance:___________________________

________ _________ Permanent parental access:_________________________________

_______ _________ Modification:___________________________________________________

SCHEDULING:

Date of Referral___________________ Court completion deadline___________

Submitting attorney_______________________________________________

Phone____________________ Fax_______________ E-mail___________________________

Address_____________________________________________________

Attorney plans for providing legal counsel to clients:

____________ provide legal advice between mediation sessions only ____________ be present at mediation sessions to provide legal counsel

to client

For A Child's Sake, Inc.

Family Mediation Services

Jana Williamson

835 Central, Suite 509

Hot Springs, Arkansas 71901

Tele: 501/624-1401 Fax: 501/624-5118

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MEDIATION SERVICES AGREEMENT

1. Divorce is a difficult and traumatic separation and loss.

Divorce involves a loss of love, companionship, security, community approval, finances, legal rights of the married, and traditional parenting relationships. Grieving over these losses involves a great deal of anger. Anger may help break the marital relationship in a healthy way. However, the basic parental relationship can never truly be broken and should not be broken, but reorganized for the sake of the children. Thus, learning to manage the anger effectively is important in making the divorced family a healthy one for everyone involved. The mediation process is a tool for managing anger so that important decisions can be made effectively.

2. Mediation is a process by which an impartial third

person(s) helps parties to resolve disputes through mutual concessions, face to face bargaining, and creative problem solving. The principles followed in the process include (1) separate the people from the problem; (2) focus on needs and desires rather than positions, (3) invent options for mutual gain, (4) insist on objective criteria. Each negotiating party using rationality, understanding, communication, reliability, non-coercive modes of influence, and acceptance toward the other party will help achieve a satisfying agreement.

3. _________________ and ____________ have jointly requested Jana

Williamson to act as their mediator. The controversy between the parties concerns: ________________________________

________________________________________________.

The parties agree to negotiate in good faith toward an agreement and to provide the mediator with full and accurate information about the case, including any financial information and documents needed to assist the parties in successful mediation. It is up to the parties themselves to negotiate their own agreement through first listening to the other party's needs and desires without verbal or physical attack.

4. The mediator has accepted the parties' request and will provide mediation services to them on an impartial basis. To maintain neutrality, any information shared with the mediator by one party privately must be shared with the other party in a joint session, unless individual conferences are requested by both parties by the mediator. The mediator will offer no legal advice, psychological counseling, or family therapy; the mediator may make referrals to professionals in these areas. The time and place of mediation will be set at the convenience of all parties. If the parties are able to reach an agreement, the mediator will prepare a non-binding memorandum recording that understanding which can then be submitted to the parties' personal attorneys to be incorporated into a binding legal document.

5. The mediator has advised the parties that conflicts are likely to arise between them during the course of negotiations. To protect their legal rights, each party is encouraged to seek legal advice from an attorney when needed. There is no limitation on the right to seek legal counsel at any time during the mediation process. Each party should advise the mediator of the name, address and telephone number of his/her attorney.

6. The mediator has also advised the parties that they may terminate the mediation at any point, paying the mediator only what has accrued to that time. The mediator in turn reserves the right to resign from the case at any time.

7. The mediator acknowledges that all information received by the mediator during this procedure will be confidential. The mediator will not divulge such information to any third person without the written consent of both parties, except for information indicating child abuse, suicide, or threats against third parties, or when required by law. The mediator urges the parties, on their part, to keep such information confidential so that there can be a full and candid exchange. The parties agree that should litigation occur, they will not call the mediator as a witness nor will they subpoena any records nor will they involve the mediator in the litigation process in any way. Verbal and written exchanges in the mediation process are, by agreement, both confidential and privileged. In the event either party involves the mediator, and the mediator resists same, parties will reimburse the mediator for any and all expenses incurred at the rate of $________ per hour. The parties also agree not to hold the mediator liable.

8. The mediator's fees are $________ per hour for __________ and $_______ per hour for ______________________, payable at the conclusion of each session with each party paying for one-half of the time used. Each party is responsible for the agreed upon portion of the bill. Each session will be scheduled for two (2) hours unless a time change is mutually agreed upon. Lack of a 24-hour cancellation notice will result in a $________ charge for the scheduled but not used meeting time.

9. The parties agree that should any disagreement arise between the parties and the mediator, such dispute will be mediated, and if mediation fails, the dispute will be arbitrated. The tribunal of mediation or arbitration will be ________________________.

Party __________________________________ Date _______________

Party __________________________________ Date ________________

Party __________________________________ Date _______________

Mediator ________________________________ Date ________________

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Mediation in the Juvenile Dependency Court

An Approach to Designing a Program That Meets the

interests and Concerns of All Parties

In Dependent/Neglect Cases

The intent of the juvenile justice system in child abuse and neglect cases is the protection of the child and the maintenance or reunification of the family with the provisions of services designed to eliminate the danger or risk to the child. In the event that the child cannot be reunified with the family, a plan to provide a permanent, stable environment is commenced, which may include adoption, guardianship, or long-term foster care.

The very nature of child abuse and neglect cases results in traumatic situations for the child and family members. Adjudication of these cases adds further stress and places the child and parent in adversarial positions. Early resolution of the court cases in a non-adversarial and problem-solving manner allows the child and family to commence treatment and counseling programs at the earliest opportunity while still preserving the power of the court's authority to protect the child.

In child abuse and neglect cases, success in accomplishing what is best for the child requires ongoing cooperation between parents and the agency. Contested hearings often create an adversarial atmosphere that may prevent a cooperative relationship from developing. After a contested hearing, the parents may be less willing to work with the agency because they feel the outcome of the case was imposed on them.

The process of reaching a negotiated settlement requires that the parties seek to understand each other's positions and work together to devise solutions. Misunderstandings and misperceptions can be corrected. The parties can be encouraged to view themselves less as adversaries and more as persons who have an interest in working together to solve common problems.

The adversarial process in child abuse and neglect cases can sometimes breakdown communications and create hostility divisiveness, and rigid position taking between participants, most notably the parents and the child protective agency. Mediation in child abuse and neglect on the other hand is a process that brings all significant case participants together in a non-adversarial setting. Communication is facilitated by neutral but highly skilled and experienced mediators, who thoroughly, constructively, and humanely attempt to resolve case issues.

Mediation can often replace contested hearings by resolving case in a more constructive format than adversarial proceedings. Mediation can replace hallway negotiations between a few parties, entailing partial and incomplete exchanges of information. The active involvement of mediators can protect against imbalances of power between participants resulting from various levels of skill, experience, professional status, or cultural differences.

Mediation should always focus on preserving the safety and best interest of the children while simultaneously attempting to validate the concerns, points of view, feelings, and resources of all participants, especially family members. Mediators orient and educate family members, clarify issues, facilitate exchange of current case information, and creatively intervene to resolve roadblocks to settlement. Mediation also seeks to leave family members with an experience of having been significant, respected, and understood participants in the court process, and with an investment in accepting and complying with the terms of the resolution and/or decision of the court. Initial indications in jurisdictions where mediation is used are that mediation is typically viewed by family members as less adversarial and more friendly and empowering than traditional court processes. Those who take part in existing mediation programs believe that mediation may help reduce the degree of animosity toward "the system" and perhaps allow parents to focus more energy on child protection and other parenting issues.

Mediation provides an avenue for revisiting past conflicts and issues that have created roadblocks to constructive communication and problem solving. When such impasses are addressed and resolved, or even when they are merely validated, resistance and defensiveness are often reduced to a degree that permits settlement of some or all of the issues. Participants also find that negative preconceptions are sometimes significantly reduced during mediation discussions, thereby permitting consideration of options formerly rules out or never considered. As another benefit of mediation, less resistance may ultimately be encountered in holding family members accountable for commitments they have made in a mediation process in which they have been active participants. The mediation process itself can also serve as a model for future nonviolent and constructive problem solving and conflict resolution.

Courts may want to consider mediation as a means for reaching more productive and constructive solutions than can be achieved through formal adversarial proceedings in certain types of cases.

It must be noted, however, that mediation can never substitute for the appropriate training, compensation, caseload levels, and the active involvement of professionals participating in child abuse and neglect cases.

Mediators must not only be skilled at conflict resolution and facilitating negotiations, they must also have a thorough understanding of the child welfare system and juvenile and family court. To help ensure that the agreements formulated are appropriate and in the best interests of children, mediators also should enough understanding of the dynamics of child abuse and neglect as they affect individuals and family systems, including such issues as child development, substance abuse, domestic violence, and psychopathology. Whether the mediator's formal profession is that of a therapist, attorney, social worker, or probation officer, he or she should have significant experience in child abuse and neglect cases as well as skills in the area of mediation. Mediators should not be current employees of the child protection agency, because such employment would interfere with the perception of mediator neutrality by family members.

Mediation can be helpful in resolving dispositional, postdispositional, and some jurisdictional issues.

Child protection mediation programs typically use mediation to resolve a broad range of dispositional and postdipositional issues including, but not limited to:

identifying the family preservation services required to protect the child's safety in the home;
other services to be provided by the agency;
willingness of parents to accept services;
arrangements for placement or supervision of child
frequency and conditions of visitation;
modification of placement, visitation, services, or court-ordered conditions;
the potential for family reunification;
disputes among professionals about case issues;
familial conflicts that are interfering with the case plan or are jeopardizing the safety or best interests of the children;
the potential for termination of parental rights.

Mediation should be confidential. Information shared by Participants during mediation should be confidential and not subject to discovery, with the exception of any new allegations of abuse or neglect that arise and are subject to mandatory child abuse and neglect reporting laws, or any threats of harm to any individual that must be reported in order to protect the safety of those threatened. Even when there is only partial agreement on the issues and a judge must decide the remaining issues, the "substance" of the mediation should not be open for discussion. Such a confidentiality requirement is necessary to encourage frank and open discussion of all relevant issues.

Mediated agreements should become part of the court record.

It is preferable that any partial or complete agreement besieged by all parties and immediately reported to the judge on the record. The judge should carefully review the terms of any submitted agreement and make sure all parties understand and consent to its related terms. In the event the Judge approves the agreement, it should be immediately entered into the record as a court order consistent with court rules. The court should then designate an appropriate individual to prepare the relevant written findings of fact and conclusions of law for signature and filing.

Mediated agreements should be specific and detailed.

If mediation is to be confidential, it is important that mediation agreements be specific and detailed. Because there is no court record of the substance of mediation discussion, mediated agreements should set forth the specifics of what is expected of the parties and the factual basis for the agreement. If findings of fact and conclusions of law are required in the cases settled through mediation, their terms should be set forth in the agreement.

The availability and utilization of community resources is essential.

Courts must recognize that mediated outcomes will be only as effective as the community resources available to provide needed services to children and families. Judges must work to secure the professional support and resources necessary to make a mediation program successful.