CDS Mediation and Conflict Resolution 3 — Questions and Answers
Question 1: Under the Uniform Mediation Act (UMA), which of the following communications is generally NOT protected by mediation privilege?
- Offers of settlement made during mediation
- A party's admission of a crime planned for the future (Correct answer)
- A mediator's evaluation of the case
- Financial disclosures made in caucus
Correct answer: A party's admission of a crime planned for the future
The UMA excludes from privilege communications that a mediator or party reasonably believes indicate a plan to commit a felony, inflict bodily harm, or threaten public safety.
Question 2: A divorcing couple has a history of domestic violence. Which is the most appropriate course of action for a CDS?
- Proceed with joint mediation but set strict ground rules
- Screen for safety and consider whether mediation is appropriate at all (Correct answer)
- Require the victim to attend with a support person
- Require both parties to sign a no-contact agreement first
Correct answer: Screen for safety and consider whether mediation is appropriate at all
Domestic violence screening is a critical pre-mediation step; cases with significant power imbalances or safety concerns may require referral to litigation rather than mediation.
Question 3: What is the primary purpose of a 'Memorandum of Understanding' (MOU) produced in divorce mediation?
- It serves as the final, legally binding divorce decree
- It summarizes the agreements reached for attorneys to convert into a formal legal document (Correct answer)
- It replaces the need for a court hearing
- It establishes the mediator's fee arrangement
Correct answer: It summarizes the agreements reached for attorneys to convert into a formal legal document
An MOU documents the parties' agreed terms in mediation and is typically reviewed by each party's independent attorney before being formalized into a binding legal settlement.
Question 4: In divorce mediation, 'positional bargaining' is typically less effective than interest-based approaches because:
- It requires attorneys to be present
- It focuses on legal rights rather than financial outcomes
- It entrenches parties in competing demands rather than exploring mutual solutions (Correct answer)
- It is prohibited by most state mediation standards
Correct answer: It entrenches parties in competing demands rather than exploring mutual solutions
Positional bargaining creates win-lose dynamics where each party defends fixed demands, making compromise difficult and often damaging the co-parenting relationship.
Question 5: During a mediation session focused on property division, a spouse discloses in caucus that they intend to hide assets from the final settlement. How should the mediator proceed?
- Report the disclosure to the court immediately
- Continue mediation after encouraging the spouse to reconsider
- Terminate the mediation, as it cannot continue in good faith (Correct answer)
- Inform the other spouse of the disclosure
Correct answer: Terminate the mediation, as it cannot continue in good faith
When a party reveals intent to commit fraud, the mediation process is compromised; the mediator must terminate rather than facilitate an agreement built on deception.
Question 6: Which of the following is a key characteristic that distinguishes mediation from arbitration in divorce proceedings?
- Mediation is always faster than arbitration
- In mediation, the neutral third party makes the final decision
- In arbitration, the arbitrator imposes a binding decision; in mediation, parties retain decision-making power (Correct answer)
- Arbitration requires both parties to have legal representation
Correct answer: In arbitration, the arbitrator imposes a binding decision; in mediation, parties retain decision-making power
The defining distinction is that arbitrators decide the outcome (binding), while mediators facilitate parties in reaching their own mutually agreed solution.
Question 7: What does 'informed consent' mean in the context of divorce mediation?
- Both parties agree to share all financial records
- Parties voluntarily participate after understanding the process, their rights, and alternatives (Correct answer)
- The mediator informs the court of the parties' consent to mediate
- Spouses consent to the mediator's proposed settlement terms
Correct answer: Parties voluntarily participate after understanding the process, their rights, and alternatives
Informed consent requires that parties understand what mediation is, how it differs from litigation, their right to withdraw, and what will happen with the information shared.
CDS Mediation and Conflict Resolution 3
Under the Uniform Mediation Act (UMA), which of the following communications is generally NOT protected by mediation privilege?