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Mediation Defined: Mediation is the next step
beyond direct negotiations. It involves a neutral third party
who attempts to "facilitate" settlement negotiations
between the disputing parties. [See Ca Evid § 1115] "Mediation"
means a process in which a neutral person or persons facilitate
communication between the disputants to assist them in reaching
a mutually acceptable agreement.
"Mediation vs. "Negotiation":
Negotiations are the most common method of dispute resolution
and should be the first step in the settlement process. Negotiations
generally take place directly between the parties and their
attorneys - a third neutral party is generally not involved.
There are many forms of mediation - generally all of them involve
the participation of a neutral third party.
Advantages And Disadvantages
Advantages: There are numerous perceived advantages
to mediation of domestic relations disputes:
- Mediation may diminish the conflict between the spouses
during and after mediation, benefitting them and their children;
- There is usually a higher level of initial compliance with
settlements reached through mediation (people are more likely
to comply with agreements in which they have participated);
- Mediation is less costly than a comparable adversarial divorce;
- Support agreements reached in mediation may provide "extras"
not usually provided by court orders (e.g., agreement for
college tuition and post-high-school support for children
otherwise capable of earning their own support).
Disadvantages: However, there may be significant
disadvantages to divorce mediation. Many lawyers feel that where
the economic issues are complex and varied, or one spouse dominates
the other, the case is better suited for the adversarial process
than for mediation. Here are their concerns:
Discovery Issues: Marital settlements cannot be negotiated
without full disclosure of the spouses' finances and property.
There is no way to compel such disclosure in mediation. Thus,
mediation is often successful only after discovery is complete.
Valuation of assets: Expert opinion may be required
where community assets are difficult to value (e.g., raw land,
closely-held corporations or a professional practice).If the
case goes to court, each spouse will have a separate expert,
and opposing counsel can cross-examine on valuation questions.
However, mediators often encourage spouses jointly to select
one expert for this purpose. Choosing a single expert may
be risky for the spouse who is less familiar with the asset
in question. The expert's valuation may be affected by whatever
information is obtained from the spouse who is more familiar
with the asset.
Joint custody arrangements: Mediators often recommend
"joint custody" of children. But this simple solution
may prove unworkable where parents are hostile and inflexible
toward each other. In such cases, court-ordered custody and
visitation rights may be a better solution.
Power imbalance between spouses: Disparities in the
spouses' education, abilities, and their psychological and
emotional makeup often impact mediation. This is because mediation
depends to some extent on the spouses' ability to communicate
their concerns. To the extent one spouse dominates the conversation,
the other spouse may be at a disadvantage.
Domestic violence: Mediation may be inappropriate
where one spouse has a history of abusive behavior toward
the other. The concern is that the mediator may urge reconciliation,
putting the battered spouse at further risk. Court orders
restraining domestic violence may be a safer route than mediation
in such cases.
Family Court Programs
Mandatory Mediation of Child Custody Disputes:
Publicly funded court-annexed programs are now in effect in
California and several other states for mandatory mediation
of child custody and visitation disputes. All contested child
custody or visitation issues in a pending case (other than a
domestic violence case) must be set for mediation before or
concurrently with the setting of the matter for hearing by the
court. [Ca Fam §§ 3170, 3175; see also O.C. Sup.Ct.
Rule 703(C)] Mediation proceedings are also required in connection
with contested requests for visitation by a step-parent or grandparent
of the child. [Ca Fam § 3171]
The mediator has the duty to "assess" the children's
needs and interests. But only the custody and visitation issues
are mediated, not support or property division. [See Ca Fam
§§ 3180, 3178]
The mediation proceedings are mandatory. A recalcitrant parent's
failure to participate in the mediation may estop him or her
from being heard on the custody or visitation issue in court.
[Marriage of Economou (1990) 224 Cal.App.3d 1466, 1487, 274
Cal.Rptr. 473, 486; and see O.C. Sup.Ct. Rule 703(C)(1) --$50
sanction may be imposed for failure to attend mediation]
The purposes of the mediation proceeding are (1) to reduce
acrimony that may exist between the parties, (2) to develop
an agreement assuring the child close and continuing contact
with both parents that is in the best interest of the child
and (3) to effect a settlement of the issue of visitation rights
of all parties that is in the best interest of the child. [Ca
Fam § 3161]
Nonbinding Arbitration of Community Property Disputes:
In marriage dissolution actions, the court has discretion
to order issues involving the character, value and division
of community property worth not more than $50,000 submitted
to "judicial arbitration." [Ca Fam § 2554] "Judicial
arbitration" is the nonbinding procedure set forth in Ca
Civ Pro § 1141.10 et seq. Either party reserves the right
to a trial de novo following the arbitrator's award.
Dependency Court Mediation: Each juvenile
court has been encouraged to develop a dependency mediation
program for the benefit of the children before it. The goal
is to provide a problem-solving forum where all interested persons
can develop plans in the best interests of the children, emphasizing
family preservation and strengthening. [See Ca Wel & Inst
Between The Parties
There are numerous forms of mediation depending on how active
a role the mediator takes, whether attorneys are actively involved,
and whether the mediator is empowered to render a binding decision.
In "classic" mediation, the mediator meets directly
with the parties (attorneys generally not involved) and attempts
to facilitate settlement negotiations. The mediator's primary
function is to help the parties evaluate their positions realistically
so they can move toward settlement on their own. The mediator
usually plays a passive role, and does not express any judgment
or opinion on the merits of either side's position. The mediator's
main role is to help the parties evaluate their positions realistically,
and to keep them talking and thereby moving toward settlement.
This process is particularly valuable to preserve an existing
relationship between the parties.
Classic (or "facilitative") mediation may be useful
before a lawsuit is filed, or after discovery when information
has been fully developed, or at any time when settlement is
stalled because of communication breakdowns. A facilitative
approach is often used to clarify the issues and break an impasse
through direct discussions
Voluntary Settlement Conference
The term "mediation" also applies to voluntary settlement
conferences before a retired judge or other experienced litigator.
Here, attorneys usually represent the parties and make their
presentations. The mediator (settlement judge) takes a much
more active role in attempting to settle the case, and often
expresses an opinion as to its merits and settlement value,
but is usually not authorized to render a binding decision.
A voluntary settlement conference is similar to the "classic"
mediation format. However, unlike classic mediation, there is
no concerted attempt to get the parties to focus on their respective
interests, attack the underlying problem, and come up with their
own solution. Instead, a VSC is more focused on settlement of
litigation. An evaluative approach provides a candid and confidential
assessment that often helps move the parties toward settlement.
At a settlement conference, the settlement officer plays a much
more active role than in "classic" mediation. The
settlement conference judge, usually a retired judge or experienced
litigator, will both express an opinion (often quite strongly)
about the substantive merits of each party's position, the probable
outcome at trial, and the settlement value of the case; and
attempt to persuade the parties to accept the compromise position.
Parties sometimes authorize the mediator to render a binding
decision in the event an impasse is declared with respect to
settlement negotiations. The dispute resolution procedure then
becomes, in effect, an arbitration. This provides a fast, inexpensive
way to overcome deadlock where the remaining alternatives are
arbitration or trial, which are more formal and timeconsuming
For example, the parties may agree that the mediator will
formulate a monetary or nonmonetary final position, which will
then be incorporated into a written settlement agreement to
be signed by the parties or entered by stipulation as a binding
arbitration award or judgment. Typically, the parties also agree
in advance to certain limitations on the mediator's discretion
(e.g., "high/low" limits)
Selecting A Mediator
Many domestic relations mediators are mental health professionals.
Some are also lawyers. Some hold advanced degrees in psychology,
social work, counselling or a related field. These practitioners
have their own associations, including the Academy of Family
Mediators (AFM); the Society for Professionals in Dispute Resolution
(SPIDR); and the Association of Family and Conciliation Courts
Lawyer vs. nonlawyer mediator: Mediators trained
as psychologists or marriage counselors are often skilled in
improving communications and bringing the parties to agreement
on custody and visitation plans. However, using mental health
professionals rather than lawyers may create certain problems.
Dissolution cases are often divided between custody and financial
issues . . . but it is sometimes difficult to tell which is
which when a spouse's new interest in parenting appears to be
directly related to support issues. If it is primarily a custody
dispute, the parties may prefer a mediator with a psychological
background. If it is primarily a financial dispute, someone
who is well-versed in the financial and legal issues involved,
rather than a mental health professional, may be preferred.
Drafting Settlement Agreements
If settlement is reached through mediation, some mediators
actually draft the settlement agreement. Other mediators simply
prepare a "memorandum of understanding" on key terms
for the parties to sign. The mediator then turns this over to
the spouses' independent counsel to draft a formal settlement
There are also certain statutory limits on what can be negotiated
in a marital settlement, through mediation or otherwise:
- The spouses or their attorneys know that community assets--once
the assets have been identified and their value determined--must
be divided equally if the case goes to court (see Ca Fam §
2550). Therefore, marital settlements rarely result in unequal
division; and if they do, the spouse obtaining the larger
share usually makes greater support payments or pays for the
unequal division in some other way.
- The spouses or their attorneys also know court-ordered child
support must be within the statewide uniform statutory guideline
(see Ca Fam § 4050 et seq.). Thus, any agreement for
child support will normally meet or exceed the statutory guideline.
(If it does not, the spouses' agreement will not necessarily
bar the court from ordering a higher amount; see Ca Fam §
- Finally, the spouses or their attorneys know there are certain
statutory presumptions regarding child custody and visitation
orders (see Ca Fam §§ 3040 et seq. and 3080 et seq.);
and that the court retains power to determine what arrangements
are in the best interests of the child (Ca Fam § 3011).
Thus, the spouses' agreements cannot bar the court from reexamining
the child custody or visitation issue.
Fees & Costs:
|$300 per hour with a minimum
fee varying with the size and complexity of the case.
|Initial filing fee approximately $395.
Other fees which may or not be necessary in your particular
case are: motion fees, fees for service of process, deposition