Common Questions

You’ll find answers below to many frequently asked questions organized into categories. Expand and collapse each category by clicking on the symbols.

• Inside Mediation

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  • I don’t like confrontation. What can I expect in mediation?
  • Mediation is non-confrontational. Quite different from either the fight (confront-
    ational) or flight (avoidant) reactions to conflict, mediation is oriented instead towards settlement without ascribing blame, fault, or guilt on either party. That said, we don’t believe in banishing emotion from the mediation process. Indeed, we believe that emotions are authentic expressions of feelings, which our skilled mediators can reflect and redirect to help parties settle their disputes.

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  • Is mediation about making up?
  • No. Mediation is about resolving disputes. The mediator’s job is to give the parties every opportunity to reach a settlement, but the parties themselves decide what kind of settlement, if any, they want to reach. The mediator has no agenda. Divorce, family, and relational mediation is generally a process of disentanglement rather than reconciliation. If parties decide during, say, divorce mediation that they want to rebuild their marriage, the mediator can refer them to a couples counselor. Mediators, even when trained as counsel-
    ors or therapists, don’t act as such while conducting mediation.

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  • What about trust? Am I protected from dishonesty by the other party?
  • Before commencing mediation, New Resolution requires that parties sign its Agreement to Mediate form. This form commits parties to full disclosure of all appropriate information, including financial statements. We also recommend that parties each review any proposed settlement with their respective consultant attorneys. The attorneys may request further verification of the other party’s statements before approving the settlement.
  • Parties to civil matters such as dissolution of marriage and legal separation are further protected by the parties’ obligations, under penalty of perjury, to provide one another with preliminary and final declarations of disclosure (California Family Code §2103–2104) before their settlement can be entered as a judgment of the court. Parties who submit false or incomplete statements are liable for punitive damages, and judgments entered on the basis of such statements may be set aside. An implicated party may be further subject to criminal penalties for the commission of perjury under §2105.
  • The above safeguards notwithstanding, you may still doubt the other party’s willingness to participate honestly in mediation. Though very costly to both parties, the formal discovery process of an adversarial litigation is best in cases such as these.

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  • What happens in a mediation session?
  • Our mediation sessions are friendly and informal and results oriented. The mediator guides the conversation, identifying issues and using a proven, problem-solving process that enables you to attack the problem, not each other. The process — which typically produces a settlement in three to five sessions — is constructive and collaborative.
  • We structure sessions to address issues in order. However, sometimes the parties need to gather additional information or consult with an attorney or other expert before they can make a decision. In these situations, the parties may either adjourn until they have the missing information or they can address other aspects of the dispute.

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  • Who else can attend a mediation session?
  • Mediation is an integrative process. This means that, if both parties agree, other professionals such as certified financial planners, consultant attorneys, and child psychologists may attend a mediation session to clarify specific issues of a settlement. Parties may also, of course, consult these professionals privately between sessions.
  • Also, by mutual consent, parties can bring a friend, relative, or associate to lend moral support rather than professional expertise. This person may either participate in the mediation discussion or remain a passive observer.

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  • Can children participate in mediation?
  • Parents in divorce, separation, or visitation disputes sometimes wish to include their children in the mediation process. If both parents agree, the mediator may consent to this under certain conditions. However, the first mediation session always takes place without children.

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  • Is a mediated settlement legally binding?
  • It will become so if you wish to make it so. For court-supervised matters such as dissolution of marriage, you may take your proposed settlement — drafted by the mediator as a Memorandum of Understanding (MoU) — to your respective attorneys for review. Then, if both parties remain comfortable with the proposed settlement, one of their attorneys, a third independent attorney, or a legal document assistant (paralegal) will prepare your marital settlement agreement (MSA) based on the terms recorded in the MoU.
  • You may use any attorney on whom you both agree to prepare the MSA. You may also use our attorney-in-residence, Katherine Burke, J.D., an independ-
    ent attorney with San Francisco–based law firm Burke Family Law. Once submitted to the court and approved by a judge, the MSA becomes a legally binding order of the court.
  • For modifications to child custody and child support agreements, you may file the MoU directly with the family court. Likewise for other civil disputes outside the family court system. Consider, for example, a mediated agreement between siblings to share an elderly parent’s assisted-living costs. The parties can ask the mediator to draft the agreement in a way that makes it legally binding. The agreement is then enforceable in civil court.

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  • What happens if we can’t agree in mediation?
  • Some 80% of divorce, family, and relational disputes settle in mediation. More-
    over, even if you can’t agree on every issue, you’ll probably agree on many and save a lot of money in consequence. But if mediation isn’t productive, you’re always free to stop and pursue a settlement through litigation instead. Mediat-
    ion doesn’t diminish any of your rights. It’s a promising first resort before submitting to litigation.

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  • Can attorney-mediators issue legal advice?
  • No. Attorneys cannot issue legal advice to a client if they have a conflict of interest. Clearly, the mediator’s obligation of impartiality presents a conflict of interest for any attorney-mediator who might issue legal advice to either party. Indeed, all mediators — including attorney-mediators — must refrain from issuing legal advice to the parties in a dispute.
  • New Resolution’s mediators may, however, provide relevant legal information. Distinct from legal advice, which is individualized to a particular party, legal information is general and publicly available. Access to legal information will help you make the best decisions for yourself and your family. We also encourage parties to seek legal advice by consulting their own attorneys at any point during mediation.

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  • Where and when would our mediation sessions take place?
  • Our offices are in downtown San Francisco with easy parking available across the street. However, mediations are also available in other locations through-
    out the greater Bay Area. Parties are usually present in person, although teleconferencing is an option when one or both parties is unable to attend. We schedule mediation sessions during weekdays, evenings, and even weekends to best suit the professional and personal needs of our clients.

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  • How do you stay impartial?
  • Impartiality is a tenet of our profession. Without it, we’d immediately lose the trust of one or both parties and our mediation sessions would abruptly terminate. Our mediators are trained to be impartial accordingly. What helps is that we have no agenda except to give you every opportunity to reach a fair agreement if you wish to do so.
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• Mediation Logisitcs

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  • Where and when would our mediation take place?
  • Our offices are in downtown San Francisco with easy parking available across the street. However, mediations are also available in other locations through-
    out the greater Bay Area. Parties are usually present in person, although teleconferencing is an option when one or both parties is unable to attend. We schedule mediation sessions during weekdays, evenings, and even weekends to best suit the professional and personal needs of our clients.

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  • Can we mediate via telephone?
  • Yes. Mediation is most effective when parties are present with the mediator. However, we will conduct mediations via teleconference or video-conference if one or both parties are unable or unwilling to convene in person.

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  • How long is each session?
  • The parties largely determine the length of each mediation session. For example, sometimes parties meet for just one hour before adjourning. Other sessions may extend as long as three hours. Sessions are typically two hours.

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  • When is the right time to begin mediation?
  • Now. Experience shows that positions harden with the passage of time and the onset of litigation. For this reason, the best time to begin mediation is always sooner rather than later. That said, many parties commence mediation later in their dispute cycle as the emotional and financial toll of litigation begins to mount. Parties to a family dispute such as a divorce or legal separation can begin mediation either before or after filing their petition, summons, and response with the court.

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  • I’d like to participate in mediation, but should I also talk to an attorney?
  • We recommend that all parties consult an attorney at least once, each asking their respective attorneys to review any proposed settlement. For some parties, a single consultation towards the end of mediation is sufficient. Other parties, however, prefer to consult their attorneys more frequently.
  • Parties might, for example, talk with an attorney before the first mediation session to help develop proposals based on likely best and worst outcomes if the case were contested in court. They might continue to consult with their attorney as issues arise between mediation sessions. And parties might even, by mutual consent, ask their attorneys to accompany them in mediation.
  • Your choice of attorney is actually more important than the frequency of consult-
    ation. Many attorneys believe strongly in the benefits of mediation, but others see mediation as a threat to their business of representing clients in litigation. A mediation-friendly attorney will be happy to consult with you on an hourly basis rather than demand that you retain him/her to represent you in litigation.

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  • Who else can attend a mediation session?
  • Mediation is an integrative process. This means that, if both parties agree, other professionals such as certified financial planners, certified public accountants, business appraisers, and child psychologists may attend a mediation session to clarify specific issues of a settlement. Parties may also, of course, consult these professionals privately between sessions.
  • Also, by mutual consent, parties can bring a friend, relative, or associate to lend moral support rather than professional expertise. This person may either participate in the mediation discussion or remain a passive observer.

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  • How do you stay impartial?
  • Impartiality is a tenet of our profession. Without it, we’d immediately lose the trust of one or both parties and our mediation sessions would abruptly terminate. Our mediators are trained to be impartial accordingly. What helps is that we have no agenda except to give you every opportunity to reach a fair agreement if you wish to do so.
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• Emotion and Hostility

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  • I have a lot of emotion over this. I don’t know if I can sit calmly across the table from the other party and work out an agreement.
  • You’re not alone! Most disputes — especially divorce, family, and relational disputes — are steeped in emotion. Some mediators try to look beyond emotion as if it weren’t an inextricable part of your relationship to your dispute. They suppose that their refusal to acknowledge emotion will somehow force otherwise emotional parties into logical and cooperative behaviors. We think this approach to mediation is a mistake.
  • New Resolution believes that your emotions are authentic expressions of your feelings. Our mediators can reflect and redirect these emotions to help our clients settle their disputes. Indeed, we ensure that our mediation sessions provide a safe environment for the expression of emotions without threatening the equanimity of either party.

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  • Isn’t mediation just for friendly disputes?
  • No. Our mediators frequently work with profound emotions such as anger, fear, hurt, and pain. In fact, parties who feel intense hostility towards one another are among the greatest beneficiaries of mediation, for their disputes will carry the greatest emotional and financial cost if pursued in litigation.

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  • I don’t like confrontation. What can I expect in mediation?
  • Mediation is non-confrontational. Quite different from either the fight (confront-
    ational) or flight (avoidant) responses to conflict, it’s oriented instead towards settlement without ascribing blame, fault, or guilt on either party. That said, we don’t believe in banishing emotion from the mediation process. Indeed, we believe that emotions are authentic expressions of feelings, which our skilled mediators reflect and redirect to help parties settle their dispute.

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  • Must we meet in the same room? Can we use our mediator as a kind of
    go-between?
  • Direct communication is one of mediation’s many benefits. Litigation, in con-
    trast, isolates parties, rendering them unable to communicate their views directly to one another. With this in mind, we emphasize joint sessions in which both parties are in the same room together with their mediator. However, the mediator may break a joint session at an appropriate time to meet privately with each party. With the parties’ consent, the mediator may also use these private meetings to act as a go-between if such shuttle diplomacy can facilitate a resolution.
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• Mediation and Attorneys

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  • I’d like to participate in mediation, but should I also talk to an attorney?
  • We recommend that all parties consult an attorney at least once, each asking their respective attorneys to review any proposed settlement. For some parties, a single consultation towards the end of mediation is sufficient. Other parties, however, prefer to consult with their attorneys more frequently.
  • Parties might, for example, talk with an attorney before the first mediation session to help develop proposals based on likely best and worst outcomes if the case were contested in court. They might continue to consult with their attorney as issues arise between mediation sessions. And parties might even, by mutual consent, ask their attorneys to accompany them in mediation.
  • Your choice of attorney is actually more important than the frequency of consultation. Many attorneys believe strongly in the benefits of mediation, but others see mediation as a threat to their business of representing clients in litigation. A mediation-friendly attorney will be happy to consult with you on an hourly basis rather than demand that you retain him/her to represent you in litigation.

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  • What makes a good attorney for consultation and advice?
  • Of course, your consultant attorney will need expertise in the area of law that’s relevant to your case: family law, elder law, real estate, business law, etc. To this end, look for a specialist, not a generalist who dabbles in several areas. Also important, find an attorney who can answer your questions in language that you understand, free of jargon and legalese. Finally, avoid attorneys who seem overly aggressive or cynical. They’ll make your conflict worse, potentially derailing your best efforts to reach a settlement without the costs of litigation. Contact us if you’d like some referrals to consultant attorneys.
  • New Resolution maintains a special relationship with independent family law attorney Katherine Burke, J.D., of Burke Family Law. As New Resolution’s attorney-in-residence, Katherine Burke is available to consult with parties, draft marital settlement agreements, and file court paperwork.

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  • I really don’t want attorneys involved. Can we avoid them entirely?
  • Yes. Mediation supports parties in resolving disputes in a way that fulfills their interests. Such a resolution may or may not coincide exactly with a settlement achieved through litigation. Indeed, for many types of family and relational disputes, the parties regard attorney involvement as inappropriate or premature.
  • In other types of dispute, however, parties prefer to consult their respective attorneys for at least an hour or so. You won’t be surrendering control of your case and engaging in an adversarial litigation. Rather, for a relatively small expense, you’ll be gaining peace of mind from having sought legal counsel.

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  • Can attorney-mediators issue legal advice?
  • No. Attorneys cannot issue legal advice to a client if they have a conflict of interest. Clearly, the mediator’s obligation of impartiality presents a conflict of interest for any attorney-mediator who might issue legal advice to either party. Indeed, all mediators — including attorney- mediators — must refrain from issuing legal advice to the parties in a dispute.
  • New Resolution’s mediators may, however, provide relevant legal information. Distinct from legal advice, which is individualized to a particular party, legal information is general and publicly available. Access to legal information will help you make the best decisions for yourself and your family. We also encourage parties to seek legal advice by consulting their own attorneys at any point during mediation.

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  • Should our mediator be a practicing attorney?
  • Your mediator should be a professional mediator. Mediation is distinct from the adversarial process of litigation in which attorneys are trained. Consultant attorneys are complementary to the mediation process. For example, a consultant attorney can assess the strengths and weaknesses of a party’s legal case, develop counter-proposals to offers by the other party, and suggest potential best-case and worst-case outcomes if the dispute were contested in court. Consultant attorneys can also review a mediated settlement before the parties made it legally binding. Attorneys might even accompany their respective clients to mediation sessions.
  • In summary, New Resolution recommends both specialist mediators and specialist attorneys: specialist mediators for their expertise in conflict resolution and specialist attorneys for their counsel in law and litigation. Your dispute is too important to hire a jack of all trades and master of none.
  • In summary, New Resolution recommends both specialist mediators and specialist attorneys: specialist mediators for their expertise in conflict resolution and specialist attorneys for their counsel in law and litigation. Your dispute is too important to hire a jack of all trades and master of none.
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• Mediation Cases

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  • What types of cases do you mediate?
  • Divorce, family, and relational disputes. Examples include dissolutions of marriage, legal separations, co-parenting disputes, inheritance and estate disputes, property disputes, and disputes within small businesses and family businesses. Please contact us, request a telephone consultation, or schedule an in-person consultation to discuss whether your particular dispute might be suitable for mediation.

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  • Can we mediate just one aspect of our dispute?
  • Yes. Disputes often comprise multiple issues. Dissolutions of marriage, for example, typically comprise a division of assets and debts, the choice of who will reside in the family home, arrangements for children, determination of child and spousal support, and sensitive issues such as the introduction of children to new partners.
  • In such multi-issue disputes, you’re welcome to mediate just one or two issues, setting others aside for resolution by alternative means such as litigation if necessary. You may be able to successfully mediate even the most contentious issues in your dispute. But even if not, you’ll save money and reduce the emotional cost of litigation for every issue that you resolve in mediation.

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  • Can mediation be used to modify existing agreements?
  • Yes. The circumstances of our lives are continually changing. In consequence, last year’s resolution may no longer suit one or other party. This applies to resolutions achieved both through litigation and through mediation. In either case, unless specifically prohibited by their contract, parties can always re-
    negotiate an existing agreement in light of their changed circumstances.
  • For example, some time after a dissolution of marriage, one party may wish for a change in spousal support or a greater share of time with the children. Such an agreement may be settled in mediation because parties are free to change their Marital Settlement Agreement as long as both consent to the change.

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  • Is every case suitable for mediation?
  • No. Most divorce, family, and relational disputes are best settled in mediation. However, litigation is sometimes a more suitable alternative. For that reason, we consider the following factors before accepting a case: (i) a history of violence or abuse between the parties, (ii) an insuperable power differential between the parties, (iii) persistent doubts concerning the candor of either party, safeguards notwithstanding, and (iv) a recent history of mental health disorders or substance abuse that may impair participation.
  • Our assessment of each case is confidential and depends on the full disclos-
    ure of both parties. Your cooperation helps us determine the most suitable forum for resolving your dispute. Our mediators reserve the right to terminate mediation at any point if they believe that the parties would be better served by an alternative resolution process.

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  • Does mediation ever fail?
  • Rarely. Some 80% of divorce, family, and relational disputes settle in med-
    iation. Moreover, even if you can’t agree on every issue, you’ll probably agree on many and save a lot of money in consequence. And you always retain the freedom to stop mediation at any time and pursue litigation instead.
  • The parties who are least likely to reach a settlement in mediation experience their conflict as a moral cause or crusade. They seek to avenge or vanquish the other party. Mediation — oriented towards settlement without ascribing blame or fault — will always disappoint such crusaders.
  • Parties should recognize though that they are hardly more likely to find vindic-
    ation in court. Judges’ rulings — particularly in divorce, family, and relational disputes — are usually based on either state-mandated guidelines or compromises between the parties’ positions. Nevertheless, a judicial ruling does at least offer the possibility of vindication to parties who are willing to accept the costs and risks of litigation.
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• Introducing the Other Party to Mediation

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  • I want to try mediation, but I’m not sure about the other party. Can you help?
  • Yes. One party will often identify mediation as a preferred route to resolution while the other remains unsure or unaware of mediation. In such situations, you can proceed in several ways: You may want to tell the other party about mediation yourself by pointing them to our site at www.newresolution.org. You may want us to invite the other party to mediation on your behalf via telephone, mail, or e-mail. Or you may prefer to schedule a telephone or in-person consultation to discuss mediation in your particular case.
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• Next Steps

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  • Do you offer consultations?
  • Yes. We offer both telephone and in-person consultations at our San Francisco and satellite locations. During this consultation, your mediator will explain the process and answer questions. Please note that we do not provide legal advice, but will refer you to independent family law attorneys for advice on request.

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  • I want to try mediation, but I’m not sure about the other party. Can you help?
  • Yes. One party will often identify mediation as a preferred route to resolution while the other remains unsure or unaware of mediation. In such situations, you can proceed in several ways: You may want to tell the other party about mediation yourself by pointing them to our site. You may want us to invite the other party to mediation on your behalf via telephone, mail, or e-mail. Or you may prefer to schedule a telephone or in-person consultation to discuss mediation in your particular case.

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  • When is the right time to begin mediation?
  • Now. Experience shows that positions harden with the passage of time and the onset of litigation. For this reason, the best time to begin mediation is always sooner rather than later. That said, many parties commence mediation later in their dispute cycle as the emotional and financial toll of litigation begins to mount. Parties to a family dispute such as a divorce or legal separation can begin mediation either before or after filing their petition, summons, and response with the court.
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