Sharing the Holidays

My family celebrates Christmas and I am fortunate enough to be able to divide my holiday celebrations with the loving family of my spouse as well as with my own family (also loving).

We are not the only couple to be dividing the holidays like this and it works quite well, if not perfectly, for us and for our families. Accommodations are made, big celebration dinners are delayed a few days, other events are shifted around, and Christmas presents are opened starting Christmas Eve, continuing Christmas Day and several days thereafter for each celebration.

Other families celebrate their Christmas differently, or celebrate Hanukkah, Kwanzaa and other religious or non-religious holidays. Every family is different, but the goal is the same: For everyone to be together, to enjoy the time we have with each other and to do things that make our loved ones happy.

Wishing you and your family happy holidays and peace in your families, in your lives and on earth.

"How Is A Mediated Settlement Enforced?"

Everything said or done in preparation for or during the course of mediation is confidential. So how can mediation participants be assured that the agreements they create in mediation will be enforced? There are several steps, starting with an enforceable settlement agreement.

Once agreements are made in mediation, a written settlement agreement is prepared by the parties, their lawyers or the mediator, which the parties (and lawyers) then sign. An important part of any mediated settlement agreement is a provision that the parties intend the agreement to be binding and enforceable, which means that the written settlement agreement is an exception to the rule of full confidentiality for anything prepared for or during mediation.

In cases where there are no attorneys at the mediation (either the parties are represented but wanted to mediate without attorneys or the parties have not retained attorneys at all), I work with the parties to prepare a comprehensive written settlement agreement that incorporates all of the terms the parties have worked out. Then, I send the parties off to meet with their own independent attorneys to review the proposed settlement agreement and give each party independent legal advice about their rights and obligations and recommendations regarding the settlement agreement. Often, attorneys are hired for 1-2 hours of time just to review and discuss the agreement with a party.

Depending on the case, we might also prepare a temporary agreement that details the essential terms of the agreements entered while we finalize the more formal settlement agreement. That is to provide parties with security in knowing that there is an agreement in place and that further negotiations about these important points is unnecessary.

Finally, in a family law case, the settlement agreement gets filed with the court, providing the parties with all the enforcement of a court order. If the terms are not complied with by one party, the other party is able to ask the court for help in enforcing the order through sanctions, reimbursement of attorney's fees, or contempt citations (leading to other penalties or jail time).

In any other type of civil case, the settlement agreement is typically not filed with the court, but a Dismissal is filed with the court to close any case that was pending in court. The written agreement itself - whether there was or was not a lawsuit filed - is an enforceable contract between the parties. Certain provisions are included in the settlement agreement to give the court authority to enforce such settlement agreement without opening a new case. If those provisions are not included, then a lawsuit for breach of contract may be necessary to enforce the agreement.

The time spent in crafting a comprehensive settlement agreement is to not only get all the essential terms right, but also to make sure it is a contract that can be relied upon as enforceable by the parties, should the need arise.

Another Thank you to Ramani at Hackosphere

Ramani at Hackosphere has helped me get the "Read More" function to work properly on this blog. This way, readers can get a snippet of information - the "summary" and can decide whether to click the "Read More" link ...
...to read the rest of the article. Since some of my posts include a lot of information, this is a great new tool for me and my readers! Readers can click on "Summary Only" to get back to just the snippet. Thanks again Ramani!

"Is Mediation Like Trial?"

Mediation is not anything like a court trial so there will be no testifying, no cross-examination, no objections and no judge to make decisions about your case. This is why I always tell mediation participants to relax because nobody is going to do anything without their permission - it's up to them to decide what happens...

In some civil cases, it makes sense for each side to give some sort of opening remarks when all parties and counsel are sitting around the mediation table in joint session. But if one side is extremely uncomfortable with such an arrangement, then it doesn't happen. But usually, at some point in a mediation, it makes sense to get all the participants sitting around the same table to hear or exchange some important pieces of information - whether it's a heartfelt apology, or some new information that has just been discovered or "realized" as important to the negotiations or the case.

Whether everyone is sitting at the mediation table together or the parties are in their own separate rooms speaking privately with the mediator, it is a more relaxed atmosphere and is nothing like being in court with a court reporter and a judge scrutinizing everything that is said and done.

"Mediation Preferred Over Court to Resolve Housing Disagreements"

I have pasted below a Question and Response regarding mediation that appeared in today's "Home" section of The San Francisco Chronicle.

"Mediation preferred over court to resolve housing disagreements - Project Sentinel
Saturday, December 9, 2006

Q: The city in which I own rental property has a mediation program to help landlords and tenants resolve housing issues. I support this concept in theory, but wonder if the process really works. Since your agency offers mediation services, please "sell me" on the value of using mediation.

A: Mediation programs have a very high success rate in resolving cases, generally in the range of 75-90 percent. Mediation works because it allows disputing parties to openly discuss their issues and resolve them in a safe, confidential environment facilitated by neutral mediators. The mediators' role is to open communication and develop trust between the parties, who can then explore options and alternatives, and eventually reach a mutually acceptable resolution to their dispute.

Participating in mediation is voluntary for all parties and is usually free. The mediation session takes place in a private, neutral location. Mediators have completed specialized training and generally come from the service-oriented community. The parties control the outcome.

A traditional legal action is expensive and time-consuming. The case is heard in open court, convenience is not a consideration, and the judge, acting as an arbitrator, makes a decision for the parties. We strongly support the mediation process to resolve disputes.

©2006 by Project Sentinel, a referral and mediation service. Send questions to Project Sentinel, 1055 Sunnyvale- Saratoga Road, Suite No. 3, Sunnyvale, CA 94087, or call (408) 720-9888 or (888) 331-3332. To find the fair housing agency serving the area where you live or have property, call the Housing Discrimination Hotline, (415) 468-7464. To reach the federal fair housing enforcement center in the San Francisco area, call (800) 347-3739."

Here is the letter I sent in response (my first ever!):

"As an attorney-mediator, I would like to thank Project Sentinel for highlighting the benefits of mediation as an alternative to court in housing disputes and also to inform readers that mediation is a great alternative to court litigation in many other types of disputes as well (e.g., business, employment, family/divorce, neighbor disputes, personal injury, probate, etc.). Project Sentinel states that mediation “is usually free.” That statement may only apply to housing discrimination disputes and not to all the other disputes which are mediated every day. While certain organizations and agencies provide free mediation services from trained volunteer mediators, most mediators provide mediation services for a fee, because that is our profession; we are professional mediators and we rely on paying clients in order to continue providing “pro bono” or free services to those in need."

A Wealth of Information About California Divorce Procedures and Requirements

There are many resources for individuals considering divorce, legal separation or annulments. One source is Nolo Press, which offers basic step-by-step information for the "do-it-yourself" type of people who do not have complicated issues to resolve. Nolo also has an attorney and/or mediator locator function in case doing it yourself is not an option or has not worked out.

Another great resource for those who are interested in learning more about the steps necessary to start and complete a divorce in California is one I just discovered today.

It is the Contra Costa County Superior Court's website which seems to function more like a weblog. But it is loaded with very helpful information for divorcing parties and/or their attorneys. The site is very easy to navigate and to understand.

When you have any type of case proceeding in court, you should always look at the website for that court to find out as much as you can about the rules and procedures specific to that location. No matter how much experience an attorney or a party has in a particular court, it is always a good idea to read through the rules and procedures and find good tidbits of information that can help save you time and money.

"I Don't Know if The Other Party Will Consider Mediation"

You'll never know if you don't ask.

If you are not in a position to ask the other party to consider mediation, talk to your attorney and ask your attorney to suggest mediation to the other side.

If you are not represented but the other party is, you could call that attorney and suggest mediation as a way to resolve the matter.

If you are not represented, whether the other party is represented or not, you could contact the mediator you would like to hire and ask the mediator to make contact with the other party to discuss mediation and find out if the other party will try it.

Or you can give the potential mediator's contact information to the other party and ask them to call the mediator themselves to find out about the process.

Here are some guideline questions you might use if you are suggesting mediation to the other party or the other party's attorney, whether you have a mediator in mind or not:

- I know we have been going back and forth over what to do with our dispute for a long time now, so I wanted to see if you have considered having a mediator help resolve our case.

- It seems like we're both spending an awful lot of money to fight this thing out in court, would you be interested in looking into mediation as an option to get this case settled?

-I've read that mediation can save a lot of time and money for all kinds of disputes and we'd still get to make our own decisions. Why don't we try that?

-I don't think either of us likes the potential outcomes if this dispute goes to trial; why don't we find a mediator to work with us and find some more creative solutions for our issues?

- Our legal fights have been very hard on the kids; I heard that mediation is a good way to find agreements that work for everyone, especially when there are children involved. What do you think?

If any of these gets the other party to consider mediation, then you can provide the name of the mediator you have in mind ("I've looked at mediator Jane Doe's website and think she could help us. Do you want to take down her information and research this on your own and get back to me?").

Or you can each do some research, come up with several mediator's names and then either agree on one or toss a coin if you can't agree. Just get started!

No Switching of Mediator and Attorney Roles

Because of ethical rules governing mediators as well as attorneys, I cannot be hired as the mediator in a case and then switch roles to act as one party's attorney. Likewise, I cannot be hired as one party's attorney first and then switch roles to act as mediator for the parties. It's one role or the other - never both.

As a mediator, I am neutral and not working in one party's favor over the other. I am hired by both parties to help find fair, reasonable and workable solutions for everyone. While I discuss California law and local court practices regarding all issues, I do not give advice to either party as to what each party should or should not agree to or what is in one party's best interest over the party's best interest. Parties make "fairness" decisions between them based on legal guidelines as well as what works best for them. The one-size-fits-all legal model simply does not apply where it makes no sense to apply!

As an attorney, I am not hired to be neutral. I am hired to provide information regarding the law and court practices, to advocate in my client's best interest and to provide legal advice and recommendations.

When a potential client calls me for a family or divorce mediation, I discuss a bit of the legal process as well as the mediation process first. I explain that if I am consulted as a potential attorney for one of the parties then I cannot be the parties' mediator and vice versa. I also explain that if I am hired as an attorney for one party, that does not mean we cannot work together with the other party and/or their attorney informally to create agreements. It also does not mean that we cannot agree to hire a different mediator if we cannot reach solutions. Then we discuss which process makes the most sense for the potential client and we set up the next step - a one-on consultation for the attorney representation or a meeting with both parties to begin the mediation process (or discuss beginning the process, as the case may be).

It is important that individuals venturing into the divorce or family law process understand what their options are. To that end, I try to provide as much information as I can about their options before the line has been crossed between a neutral faciliator for both parties and an attorney-client relationship with just one party. It must be one or the other - never both.

What if Mediation Does Not Settle the Case?

Wiley Miller's "Non Sequitur" comic strip shows a mediator sitting in her office chair with a small table next to her but she is sitting in the middle of a full-size boxing ring. She is speaking to the mediation parties (a man and a woman) and says: "Ok... Since we couldn't reach an agreement in the first phase of mediation, let's move on to phase 2..."

Since a boxing match is not a reasonable alternative to mediation, what are the options if settlement is not reached through mediation? If a case has not yet been filed, the next step may be for the aggrieved person to file the lawsuit and seek relief from the court. As sometimes happens, the information discovered during the mediation process could result in the alleged aggrieved person changing his or her mind and dropping the matter entirely. This is not a common occurrence, but it has happened.

Or, as more often happens, it may be determined in mediation that additional information needs to be discovered by the parties before a genuine meeting of the minds can occur. In that case, maybe a lawsuit and its formal discovery rules (written interrogatories, document subpoenas, recorded depositions of parties and witnesses, experts, etc.) is the path a dispute must take. However, a lawsuit is not required if the parties can come to an agreement to conduct informal discovery for the limited purpose of obtaining key information to assist with settlement discussions without diving headfirst into all-out discovery combat or filing a public lawsuit.

In the event that a lawsuit is ultimately filed, while the attorneys are busy conducting discovery and preparing the case for trial, there is always the option of bringing all the parties back to the mediation table once more information has been produced. Often, the information a party obtains through the discovery process not only helps him/her learn more about the opponent's case, but may also shed light on weaknesses of his/her own case, resulting in a stronger incentive to resolve the case before all those weaknesses are brought to light in court. This typically happens to ALL sides of a dispute, whether the weakness is the uncertainty of witness or documentary support, a lack of money to fund the remainder of the discovery and trial process, or even a lack of emotional stamina by a party to continue engaging in warfare. Any of these, and more, could be reasons that pull parties back to mediation even after one session did not settle the matter and a lawsuit was filed.

On the other hand, if mediation was required under the terms of a contract and the issues were not resolved in mediation, the next required step may be arbitration if the contract calls for it, in which case filing a lawsuit in court is not an option. (See prior post for the differences between mediation and arbitration). In that case, the aggrieved party typically files his/her notice of arbitration pursuant to the terms of the contract to get the arbitration process started.

One last alternative is that the parties, who have at least started to negotiate in mediation, continue their settlement discussions informally and resolve the matter through direct communication through their lawyers - or, if there are no attorneys, with each other. This may not be the typical result, but it does happen.

These are the options in the event that mediation does not settle the case. The more interested both parties are in resolving the case through mediation, the more likely the case will settle and these options will not be necessary.

Whatever the next step, mediation is at the very least a place where productive settlement discussions can start, where agreements can be made on small or large issues, if not the entire matter, or agreements formed to conduct informal discovery to make the next mediation session the one that settles the case.

Who Pays for Mediation?

Answer: It depends on who has the money and what is fair for the parties.

In a civil case such as an employment dispute or personal injury case, the parties must agree to some type of allocation of the mediation fees up front. This is because the fees must be paid at least 1-2 weeks before the full day or half day mediation that has been scheduled.

Such an allocation is often a straight 50/50 split of the fees. However, I often see other arrangements such as 40/60 or 30/70 cost sharing as well as one side agreeing to pay for the full cost of mediation. These alternate cost sharing arrangements frequently make sense where one party simply does not have the same finances available to pay for mediation (for example because they were fired from their job which is the subject of the mediation). Such an arrangement might make sense to the party with the funds who does not want the other party's lack of money to be a reason for not settling the case through mediation.

In civil cases, it is not uncommon for the parties to include reimbursement of one party's share of the mediation costs in the terms of the settlement agreement, along with other litigation costs which may have been incurred before the case settled in mediation.

Just as in civil cases, who should pay for mediation is often one of the issues to be resolved in family or divorce mediations as well. But in a family mediation, the parties generally do not pay until the day of mediation, and frequently not until the end of each session.

Because family mediations typically extend between 2 and 6 half day sessions (unlike civil mediations), I often see parties with relatively equal finances alternating the payments between them. For example, Husband pays for the first session, Wife pays for the second, etc. Where the parties have unequal finances, it is often seen as fair by the parties for the party who earns much more than the other person to pay for the full costs of mediation. This is because, just as in the civil case, the party with more money is able to see the benefits of mediation versus the alternative, and is willing to pay for that benefit instead of lose the opportunity for an amicable settlement.

How Do I Start the Mediation Process?

First, you and the other party should try to discuss mediation as an option to resolving your dispute without a lawsuit, or to avoid an upcoming hearing or trial date if a lawsuit is already underway.

Second, one or both parties can contact the potential mediator to schedule a date and time for mediation.

Third, if one party is hesitant about mediation, the mediator can call the uncertain party (or the uncertain party can call the mediator) to discuss mediation as an alternative to litigation and to discuss the process as well as the mediator's neutral role in the process.

Fourth, if it is a civil matter (non-criminal and non-family law dispute) the parties prepare mediation briefs providing all relevant facts of the dispute as well as the legal issues being disputed. (See prior post on mediation briefs)

Fifth, show up at the mediation location on time, keep a level head, treat everyone respectfully, work collaboratively with the help of the mediator to find the solutions needed and memorialize the solutions into a written and signed Settlement Agreement.

If yours is a family law case, expect between two and six mediation sessions to get all issues resolved (custody, visitation, child support, spousal support, asset and debt division, pensions.)

If your dispute has already been filed as a lawsuit, the lawsuit would be dismissed once the Settlement Agreement is in hand and the terms of the Agreement have been satisfied.

That's how the mediation process gets started and that's how it ends a dispute. The sooner you get started, the sooner your disputes will be over. What are you waiting for?

Happy Thanksgiving

Happy Thanksgiving! I am taking a few days off to enjoy and feed my family. I hope you enjoy this time off as well to enjoy your friends and family and hopefully some good pumpkin pie! Bon appetit!

Do Mediated Settlements Have to Follow the Law?

Answer: No.

Any settlement reached through mediation is going to be "memorialized" in a written settlement agreement. That settlement agreement is an enforceable contract between the parties who entered into the agreement.

Although mediated settlements can be very creative (much more so than resolutions reached through litigation), and although they do not need to "follow the law," this does not mean mediated settlements can be based on illegal terms. If any contract is based on illegal terms, it will not be enforceable. Enforceability of any settlement agreement or contract is very important. Why spend all that time crafting an agreement that will not be upheld if challenged?

Here's an example from an employment case: In the complaint alleging wrongful termination, the employee asks for compensation for lost wages and benefits and emotional distress. He asks for these specific remedies because if the case goes to trial, and if the employee is successful in proving wrongful termination, these are (typically) the only possible remedies provided for under the law.

But in mediation, the parties can get more creative than they are allowed to under the law. Maybe it would be beneficial to the employee to obtain a letter of reference from the employer to use in his new job search as well as a continuation of health benefits for the employee and his family until he gets a new job. Or maybe the employer has contacts at another company and could actually help get the employee another job. Having these needs fulfilled makes more sense for this employee who sees he may have trouble in court proving his wrongful termination case.

In mediation, the parties can craft a resolution that includes these other interests instead of just focusing on the actual lost wages and benefits or proving each element of the claims. In court, the remedies are limited to what is provided under the law. But a mediated result is not limited by what the available legal remedies are. However, a mediated settlement, just like any other settlement agreement or contract, still cannot include illegal terms. An example of an illegal term would be one party agreeing to rob a bank to obtain the money necessary to pay the other party. That's not going to be enforceable even if it is a signed agreement.

Gender & Mediation: Imbalance of Power as a Reason Against Mediation?

I have read several articles lately about perceptions that women may fare worse than men in mediation because of an imbalance of power and that perhaps mediation is not a wise choice to resolve disputes when there is such an imbalance.

I believe that mediation is absolutely the right place to resolve a dispute where there is a power imbalance between the parties. I also believe that women do not fare better or worse than men in mediation. I strongly believe that each mediated result is a reasonable and fair result to both parties and that there is no "winner" or "loser" in mediation because everyone walks away with their own "wins."

Just as the inherent power imbalance present in an Employment case (little employee with limited resources vs. big employer with big financing and attorneys) is easily handled by a skillful mediator, any power imbalances between men and women in any kind of mediation are also easily handled by the mediator who is trained to look for and recognize such issues regardless of which gender holds the power on any given issue.

A power imbalance in a Family Law case can include such issues as one party having control and knowledge of the finances, one party having sole access to all the documents, one party having control of all decisions regarding children (school, medical, religion, etc.) or the house, or other assets, as well as one party being more aggressive or controlling during the marital relationship.
From my experiences as a Family Law attorney and Divorce Mediator, both men and women occupy varying sides of these issues in different ways, creating various power imbalances in each relationship depending on the issue.

As a mediator, part of my role in "facilitating communication" is to ensure that each party is able to express their needs and interests and to ensure that each party has sufficient information (factual and legal) to make an informed decision that each party believes is in his or her best interest.

As the neutral mediator, it is not my job to tell someone what is actually in their best interest, but it is my job to make sure that each party feels comfortable and confident in obtaining and processing all of the necessary information, making sure neither party feels unduly pressured by the other party, and to make certain that each party makes their own informed and reasoned decisions of his and her own free will and determination. It is free will and determination of the parties that is supported and promoted in the mediation process and which is lacking entirely in the litigation process.

Do I Have To File A Case In Family Court First To Go To Mediation?

Answer: No.

In a previous post I explained how and why it makes sense to get a civil dispute into mediation to be resolved before ever starting a lawsuit (by "civil" I mean not a criminal matter and not a family law matter). In this post, I explain how and why it makes sense to mediate your family law dispute before filing a case or a motion in the family courts.

Family law disputes are more personal, intimate and emotional than any type of dispute I've ever seen. Filing a lawsuit against your spouse, or the other parent of your children, frequently raises the antagonism between the parties and fuels the fire that started the dispute in the first place. Getting the dispute into mediation sooner rather than later helps to prevent the escalation of antagonism by avoiding the problems inherent in a "bad divorce."

When parties decide that their marriage is not salvagable, they can find a mediator they both agree on and meet with the mediator to discuss the dissolution (divorce) process . They can share the costs of the mediator or they can make other cost-sharing arrangements that work for them. They will work together with the mediator to file the necessary paperwork in court to start the marriage dissolution process and they will work together with the mediator to file the paperwork needed to finalize the dissolution. Independent attorneys will be involved to approve the agreements reached at the end. This process takes about six months (that's the minimum time required by the courts from the time the divorce papers are served until the time a final judgment can be granted). In this process, the parties have worked together with a professional mediator trained to help disputing parties work together, to resolve all of their disputes in a peaceful and sensible manner.

The litigation alternative is for each party to hire their own attorneys (with minimum retainers usually required by attorneys to avoid working for free), rush to be the first to file the Petition for Dissolution (even though there is no benefit to being the Petitioner versus the Respondent), be the first to file a custody motion or a child support motion or a spousal support motion, pay the attorneys to draft the motions and oppositions and to appear at court and argue over your personal finances and private lives resulting in temporary orders, and then starting the process over again to get permanent orders on support, custody/visitation and property division. This path does not mean you can not try to resolve your disputes informally during the litigation with or without a mediator, as this is how many litigated cases get resolved in the end.

If it is a non-divorce custody or support matter (i.e., modification of visitation, custody or support), the alternative to filing a motion and re-opening or starting a new case, is to simply have both parties meet with a private mediator and work out an agreement together which can be filed with the court as an enforceable order.

The mediation process is extremely flexible and can be used in different ways by different parties depending on their circumstances and needs. A lawsuit or a motion does not need to be filed in order to work out an agreement and create a binding contract and/or an enforceable court order.

Beyond "San Francisco" Mediation...

Even though I live and work in (and love) San Francisco, I have intended my posts to be useful to individuals in any city or state. But I have been concerned that I might be limiting my readership to just locals, or even just Californians, by calling this "San Francisco Mediation."

I was recently introduced over the Internet to Family Law attorney Pieter M. Droppert, who practices in New Jersey and who publishes a weblog called New Jersey Family And Divorce Law Blog. Pieter posted a link on his weblog to some of my posts which he believed might be helpful to readers of his readers - in New Jersey or wherever else they may live.

I have now been reading his blog, as well as the blogs of some fellow mediators who publish blogs directed towards mediators (see my Mediation links on the side panel- they're the ones I read!), and I am happy to report that all of these blogs are relevant to my mediation and law practices regardless of the business addresses of the weblog writers. I am now getting the sense that my own weblog may have some relevance to others well outside of the San Francisco Bay Area based on the links back to my weblog. My point is to help get useful information out - and it seems to be working...

A Long Day's Mediation...

An interesting and fairly typical mediation this week involved two individuals who have been entangled in their lawsuit for almost two years and who are facing a trial date this month.

In this case, each party paid half of my full day fees at 9:00 a.m. the morning of the mediation. By 9:30 a.m., one party's attorney told me that if we couldn't settle this case by noon, they were going to leave. I asked for a little flexibility on that due to the complex nature of some of the issues. I said that we would be making progress by noon, but we were not likely to have a final agreement on all issues from three hours of mediation on a case that had been battled in court for two years.

By 1:30 in the afternoon, both parties were threatening to walk out of the mediation because of the demands of the other party. One of the reasons the parties stayed was that they both understood they had already paid for my services for the full day and that they might as well get the benefit of what they had already paid for. The other reason is that their attorneys both recognized that progress was indeed being made and that this was going to take some work by all of us to accomplish a workable solution to the entire case.

By 4:30 p.m., the attorneys began getting creative with settlement options and we turned a corner in the negotiations.

By 6:30 p.m., the settlement agreement had been prepared by the attorneys and signed by the parties and their attorneys. I congratulated the parties and their counsel and commended everyone for their hard work. It was a long day, but a productive and successful day for everyone involved.

Mediation Cancellation Fees

When scheduling a mediation, it is always a good idea to check with your mediator regarding his/her cancellation policy. Most mediators have their cancellation policy clearly outlined on their website so there is no question about the details.

My own cancellation policy (on my website here) requires full payment from the cancelling party when I am given fewer than 5 days notice, but only if another mediation cannot be scheduled in its place. I know other mediators who require 7 to 10 days advance notice of a cancellation in order to avoid paying the full day's fees.

The reason for such a policy is that I have reserved the entire day (or a full 4 hours right in the middle of the day for half day mediations) for the mediation and I am therefore unable to make any other appointments or schedule any other mediation during that reserved time. Other clients who wish to make appointments for meetings or for mediation, must push their appointments until later dates to accommodate the mediations I already have on calendar. When someone cancels a full day's appointment block with me with short notice, my entire week is thrown off and I could have taken other clients had I known in advance that my entire day would be open.

I do have exceptions to this rule, but it's done on a case-by-case basis. For mediating parties and their counsel, it is always best to find out the mediator's cancellation policy up front, and to schedule a reminder for yourself to confirm the mediation before the short notice period begins to avoid paying cancellation fees.

How Much Does Mediation Cost?

Answer: Mediation fees vary by mediator and, often, by case type.

In a general civil case (Employment, Property, Breach of Contract, Personal Injury, etc.), a mediator is typically hired either for a half day or full day, depending on the complexity of the case.

A full day of civil mediation typically includes 8 hours of mediation time and 2 hours for preparation (reading mediation briefs) and travel. That's ten hours charged at the mediator's hourly rate.

That amount is usually paid up front because the mediator is essentially being reserved for the entire day and therefore cannot schedule any other matters that day. Whether the mediation lasts 6 hours or 12 hours, the mediator is compensated for just ten hours.

A half day of civil mediation typically includes 4 hours of mediation time and 1 hour for preparation (less complex issues= less preparation time for the mediator) and travel, which totals 5 hours.

Employment cases are almost always complex enough to require a full day's mediation and many mediators, including me, require that parties to Employment cases reserve (and pay for) the full day.

On the other hand, Family law cases can be so emotionally draining for the parties (and mediator), that most Family mediators, including me, schedule these in 4-hour sessions, with the understanding that multiple sessions are typically required unless there are very limited issues which can be resolved in one session. But there is generally no preparation time, and I typically charge just the 4 hours, unless significant additional time is spent with or for the parties beyond the 4 hours.

Mediator's Hourly Rates are based on their background and experience. A non-attorney mediator typically charges less than an attorney-mediator, who presumably has more legal knowledge and experience and therefore a higher hourly rate. A retired judge-mediator typically charges much more even than an attorney-mediator based on the knowledge and years of experience on the bench and in settlement conferences.

A retired judge-mediator I know at a large mediation firm charges $9,000 for a full day (about $900/hour). An attorney-mediator I know who has been a mediator for almost 20 years charges $5,000 for a full day (about $500/hour). As an attorney-mediator myself with substantial experience, my current rates are: $3,o00 for a full day, $1,500 for half day, or $300 per hour.

In case you're wondering, these amounts are far less than one party alone could expect to pay for lawyer's fee in a litigated, contested case. Mediation costs are typically split between the parties, resulting in less money spent to resolve the case for everyone involved.

We're in Marriage Counseling and Can't Agree on a Parenting Schedule - Can Mediation Help?

Answer: Yes.

The individual who asked this question is not in the middle of a divorce. Both parents are in therapy to decide whether their marriage can or should be saved and one parent is staying at a friend's house to give them some space to think.

In the meantime, what about the kids? How do the parents decide when and how each parent should spend time with the kids in the middle of this transition period? Mediation can help.

In mediation, the neutral and unbiased mediator works with the parties to discuss the current situation, to discuss ideal situations for both parents and for the children, and to formulate a parenting plan that will work for this family with the least amount of bumps in the road.

Having represented numerous fathers and mothers, husbands and wives and other domestic partners, in custody and visitation disputes in court, I am able to discuss with parents the relevant laws and issues that can come up as well as the specific processes involved in each Bay Area county's Family Law courts.

Knowing the issues and laws regarding holiday visitation, grandparent visitation, school days and school vacations, daycare and babysitting, medical decisions and other key issues that can arise, helps me to ask the right questions and engage the parents in the right discussions. This allows the parties to have a better understanding of problems which may arise in this new context and to formulate their own parenting plan that works for everyone based on what is important to each parent and the children at this time. And all of this is done without filing a court case, but with the court there as backup enforcement of the resulting contract if needed.

Choosing a "Good Divorce" over a "Bad Divorce."

We always hear that life is about choices. We can choose to be happy despite less than ideal circumstances. We can choose to be healthy despite unhealthy options. We can choose our own paths in life... or create our own.

The same is true in a divorce. Two people who once cared enough about each other to get married and who now recognize their marriage is not salvageable - for whatever reasons - can make the choice to have a "good divorce" instead of an ugly and bitter "bad divorce."

A "good divorce" means that the two adults work together to make the best choices for themselves and their children and come to a result that feels fair to both parties in the less than
ideal circumstance of finding themselves in a divorce. A "bad divorce" is taking a bad situation and making it worse - by choice.

Most of my clients opt for the "good divorce" - not just to save time and money, but also for their own mental health. This is the healthier choice. And it is just that - a choice.

More Differences Between Mandatory Court-Based Custody Mediation and Private Mediation of Domestic Issues

I wrote about the differences between court-sponsored custody mediation and private family mediation in a prior post here. Based on some negative comments I hear about court-based custody mediation, I wanted to highlight some additional differences.

The comments I typically hear about court-based, mandatory custody mediation are: 1) it is not effective; 2) the mediator was not neutral and favored the other party; 3) the parties felt pressured; 4) the results were not fair; and 5) it was a terrible experience.

As I have explained previously, private, voluntary family mediation is much different from court-based mandatory custody mediation. The mediator's backgrounds are different and the court mediators are part of the court system and are charged with very specific and narrow goals to accomplish within a very limited time frame. Court mediators are not permitted to discuss "extraneous" issues that may be incredibly important to the parties and intertwined with all the other divorce issues. Mandatory custody mediation is just one step to solve one piece of the larger puzzle. It can be effective, but is just a start.

In private mediation, the parties and the mediator create an agenda of all issues that need to be discussed and resolved. Often the issues that are discussed in mediation, which the parties have identified as being important issues, are things the family courts would not consider in making its determinations. In private mediation, all issues can be resolved whether they pertain to child custody, creating a workable co-parenting plan, extended families' visitation, child support, property division, pensions, "custody" of the family pets, spousal support, home mortgages, etc. The list is as short or as long as needed for the particular parties to the mediation.

Private family law or divorce mediation is a much more comprehensive process and is intended to allow the parties to explore concerns, emotions, finances, alternative solutions and anything else they need to discuss. This allows the parties to feel more satisfied with the agreements they worked to create than they might feel from the court's mandatory custody mediation.

The Conflict Resolution Day Tree

Today is Conflict Resolution Day. According to the Association for Conflict Resolution's (ACR) website, ACR created Conflict Resolution Day in 2005 "in order to increase public awareness about conflict resolution and its many benefits. ACR coordinated its efforts with other conflict resolution organizations and reached out to local, state and international groups to build interest in holding local celebrations in conjunction with Conflict Resolution Day. Events were held in Canada, Portugal, and 22 U.S. states. Also in the United States, a number of counties, cities and states adopted proclamations designating day- or week-long conflict resolution celebrations."

"In March 2006, ACR’s Board of Directors adopted a resolution designating the third Thursday in October as Conflict Resolution Day. Going forward, Conflict Resolution Day will always be held on the third Thursday of October. This year the event will be on October 19, 2006. To read the resolution, click here."

For mediators or members of the public who are interested in adding their names in support of conflict resolution, you can follow this link to http://www.concernedmediators.org/.

I Make More $$ As An Attorney In A Disputed Case Than I Do As A Mediator.

So why do I advocate for mediation? Because I believe it is in the best interests of almost all parties and it is in the best interests of our society to not fight when there is a better alternative. And there is a better alternative: Mediation.

As a mediator, I will get paid for a half or full day's work in a civil case or several half days in a family law case.

As a mediator in a civil dispute (i.e., non-criminal and non-family law), there is generally one full session and, sometimes, a second session if the parties request it. That's a maximum of two full days of work, or 16 hours of my time for which I get compensated in a civil case.

As a mediator in a family matter, there are typically at least two half-day sessions, and sometimes four or more half-day sessions in total. Again, that's a maximum of 16 hours of my time for which I get compensated as a mediator. (There are other scenarios, in which I draft the paperwork or spend additional time to help finalize the matter, for which I will also be compensated.)

As an attorney, I charge the same hourly rate but I spend much, much more time in a disputed case that includes written interrogatories, oral depositions, written motions and court hearings, status conferences, settlement conferences and trials.

As an attorney in two recent employment cases that settled through mediation, I spent over 100 hours just in the beginning stages of each case. As an attorney in an employment case that went to trial, my time was far more because of the workup required to prepare the case for trial in addition to all the pre-trial discovery typical in most disputed cases.

The same is true for family or domestic disputes. As an attorney in a disputed family case, I will spend a minimum of ten hours in a typical disputed case and much less if the other party is open to informal settlement discussions and/or getting the case into mediation early. If the parties had come to me in the first place to mediate the case, instead of them paying for a minimum of 20 hours (between both parties' lawyers) plus court costs, they could have paid me as a mediator to resolve the matter in much less time and with a far more satisfactory result for all involved.

It is this satisfaction with the results that were created by the parties themselves, working together instead of against each other, for a peaceful result, that makes me advocate for mediation as the best method of resolving disputes despite the fact that I make less money when the parties work together.

Do I Have To File A Civil Lawsuit To Go To Mediation?

Answer: No.

In civil disputes, (including Employment, Property, Neighbor or Contract disputes), a good course of action may start with a letter suggesting mediation of the dispute to avoid a lawsuit for everyone involved.

If you can avoid filing a lawsuit in the first place, you have already saved the $335 court filing fee and the attorney time to draft the complaint. And the defendant has already avoided paying his $335 to file an Answer to the Complaint and paying his attorney to draft the Answer (This assumes the attorneys are working by the hour only and have not required a larger retainer to handle the case, which would be more typical.)

The disputing parties could use just that case-start up money (total filing costs $670 + total attorney's fees $1,800= $2,470) to pay for a full 8 hours of a mediator's time to help resolve the case that day instead of going through many more thousands of dollars for attorneys' fees and costs and months (and sometimes years) of depositions, court hearings, trials and appeals to get the dispute resolved.

When you consider the additional issues of the uncertainty of the outcome in litigation as well as quality of life in experiencing anxiety over the ongoing unresolved dispute and ongoing litigation if the case proceeds as a lawsuit, it seems only logical to try mediation first. And maybe second too. And litigation comes in a very distant last.

Does the Mediator Need to be an Attorney?

Answer: Not necessarily, although it may be helpful depending on your case.

Having a law degree or having practiced law as an attorney are not requirements to be a mediator although many mediators are also attorneys. Other mediators have backgrounds in the mental health professions or other related or unrelated fields and, like attorney/mediators, have a strong interest in conflict resolution.

Generally, disputes that go to mediation are based on legal rights and/or obligations. If your mediator has practiced law in the areas involved in your case, the attorney/mediator may have better insight into what lies ahead for your case than a non-attorney mediator might. An attorney may also have a better handle on the legal aspects of your case such as legal standards of proof, admissibility and evidentiary issues which may affect the outcome of your case at trial. These are issues that, depending on your case, you will be focusing most of your pre-trial attention on and it may be very helpful to have a mediator who can evaluate your case based on his or her own experiences as an attorney or as a judge.

However, some non-attorney mediators have enough experience from their mediation practices to have built up such insight and knowledge despite having never practiced law.

There may also be some cases which are so emotionally difficult for one or both of the parties that a mediator with a mental health background might be the better choice than someone trained and experienced in the law and in the courtroom.

There are extremely competent mediators with expertise in a wide variety of areas. Finding the right mediator depends on the type of dispute you have and what is important in your particular case. Talking to a potential mediator about his or her background and mediation styles is generally welcomed by most mediators. I certainly welcome it!

Mediation of Disputes Between Neighbors

Neighbor disputes can start small but quickly escalate into long-standing feuds which can reduce the enjoyment of living in your own home. Neighbor disputes can include property line issues, encroaching trees, fences, noise and other disturbances (dogs, construction, etc.).

I have included a link to an informative article on neighbor disputes published recently in the San Francisco Chronicle. The title is: "Fences may make good neighbors, but knowing the law can make things easier. If a friendly talk can't resolve the issue, try mediation; litigation should be the last resort."

Mediation of neighbor disputes is a wise choice due to the ongoing relationships involved. Mediation can help neighbors work together to solve their current dispute and also work out some new methods of communication and working together peacefully to avoid such disputes in the future.

The participants to a recent neighbor dispute mediation in which I was involved were condominium owners living up and downstairs from each other. It seems the scope of one neighbor's remodel may not have been communicated clearly to the second neighbor who worked out of the home and had previously agreed to the remodel. The construction noise and vibrations had become unbearable as the scope of the work expanded significantly and there was no end in sight.

Through our mediation, the parties were able to put together a workable and reasonable plan to handle the ongoing construction and to include the second neighbor in some of the construction planning to be better prepared for the extra-loud days. The parties were able to start working more cooperatively together and more considerately of each other's needs and interests.

The alternatives were either litigation or arbitration and/or one of the parties was going to have to move. None of these were attractive options and the parties recognized that something needed to change in their working relationship so the parties could start working with each other instead of against each other. The result was the beginning of a renewed relationship focused on mutual courtesy and, for each individual, the enjoyment of their own home again.

Employment Discrimination Mediation

I participated in an employment discrimination mediation this week as an attorney instead of as the mediator. My client had accused her employer of severe harassment and mistreatment on the basis of her race.

Going into this mediation, I was uncertain whether the parties would be able to come together and work out a resolution because of their extremely divergent positions on the facts and value of the case if it were to continue through a jury trial. The employee's claims were very serious and her "damages" (her lost wages and benefits and her resulting medical condition) were high. The employer denied the allegations almost completely and its initial position in the negotiation reflected that.

The mediator's skills and knowledge of the specific legal issues we were dealing with were very strong. Without the mediator's help in carefully finding common ground between the parties and in discussing the strengths and weaknesses of both parties' cases (resulting in both sides re-examining their own case values) and working with both sides to find the right solution for the problems, this case would have continued well into next year, at a minimum, assuming there would be no appeal of the verdict.

Because the parties were able to reach an agreeable solution now, well before the trial date, both sides are able to stop paying the mounting attorney's fees and litigation costs, stop worrying about the stresses of pre-trial litigation (with multiple days of depositions and in-depth investigations), and stop worrying about the uncertain outcome that ultimately would result in one party's investment into the case being proven to have been a bad gamble. The value of an "early settlement" for these parties was the resulting agreement they worked out between them with the help of the attorneys, but mostly with the help of the skillful mediator.

Prenuptial Agreements & Mediation

Most people are familiar with the concept of prenuptial or premarital agreements. Some people are even aware of the importance of having a prenuptial agreement that protects both parties in the event of a breakup (this is not just for "rich" people and is not just a benefit to the "breadwinner"!!) But not many people are aware of the unique challenges involved, including the emotional impact such a detailed financial and "what-if" discussion may have on your relationship. After all, who wants to think about breaking up when you're just thinking about getting married?!
It's easy to ignore that inner voice that tells you to consider a prenuptial agreement when you are in love and fully intend and expect to spend the rest of your lives together. It is just as easy to ignore the need for car or health insurance. Nobody expects to be in a car accident or to be diagnosed with a severe illness. But on the off-chance that something does happen, wow, aren't we relieved to have such good insurance?!!

While divorce is certainly not inevitable, it is just as foolish to ignore the need for a prenuptial
agreement as it is to ignore the need for insurance. And prenuptial agreements provide just as much insurance to women as they do to men. Both parties benefit from being educated on their rights and obligations, knowing what to expect in the event of "a disaster" and knowing they are true financial partners in this venture and that they are each protected in their own way.

To make the most of the process of creating a prenuptial agreement, I recommend Prenuptial Agreement Mediation as a unique form of premarital financial and marital counseling and also another form of insurance - just in case.

You could hire your own attorney, review your circumstances, expectations and the law and have your attorney prepare a prenuptial agreement according to your wishes, present the agreement to your "other" who has his/her own attorney review the proposed agreement, make changes on your "other's" behalf and go back and forth with you and your attorney until you have an acceptable agreement. This works out fine in many circumstances (even for some of my own clients), but is a little more "adversarial" than might be desired for the couple on their way to spending their lives as partners. It is "adversarial " because your attorney only has your interests in mind, and your "other's" attorney is only protecting your "other's" interests. There is no true collaboration or working together and there is much room for mistrust and uncertainty in what went into the agreement and why.

Prenuptial Agreement Mediation is extremely collaborative. It allows both parties to sit in the same room together with a mediator (who is experienced with divorces and prenuptial agreements) and talk about the law, your options, your expectations, problems that may arise with your expectations and discusses sensitive issues in a non-confrontational way.

The mediator understands the challenges and potential difficulties that one party may have in asking specific "what-if" questions and works skillfully to obtain all the necessary information and to discuss creative options for the particular couple and their circumstances. This is a less confrontational way to discuss issues of spousal support, whether income or retirement accounts will be separate property or community property, what should happen with the family home in the event of a breakup, and what changes should occur if children come into the picture.

These are difficult issues that a sensitive and compassionate mediator can discuss and explore in detail with both of you working together to create your perfect agreement for your marriage. Your own independent attorneys would need to review the final agreement, which ensures the agreement will be enforceable because each of you had your own attorney advising you at some point.

Uncertain Results Under the Law: A Reason for Mediation

Uncertainty in the outcome of any litigated case can be yet another very good reason to have your case mediated. Even when the law seems clear in a particular area, the outcome of a litigated case is dependent on many factors, including the specific facts of your case, the particular judge and his/her reading of the law, the competency of your attorney and your opponent's attorney, and the nature of the admissible evidence in your case. If it is a jury trial, then add to the unknown factors 12 individuals with varying perspectives as well.

These factors lead to uncertain results for any individuals in any type of case. This is why no matter how good your case and your attorney may be, your attorney can never guarantee the results of a litigated case. He/she may tell you that your case has a good chance, but is that a 40% chance or an 80% chance? And what do those numbers mean if you are in that "losing" percentage? Can you afford to lose?

Now, add to all of the unknown factors a new area of law that is developing. This means that attorneys, judges and juries might be making new law with your case, and nobody has any idea what the outcome might be because that area of law is "unsettled." And you are paying the fees and costs on this even bigger gamble.

There may be litigants who have the time, money and mental or emotional resources to deal with such huge risks. For others, the option of mediation allows the participants to shape their own results and ensure that the investments they have made in their case will be fruitful.

In mediation, there is no "winner" and "loser" - the goal is to find the "win-win" in every situation.

Read The San Francisco Chronicle article in my next post on Unsettled Law in Same Sex Marriage/Partnership Dissolutions for an example of an unsettled area of law. When child custody rights and property rights are at issue, the risks are even greater. Mediation is the only path to take with confidence.

Unsettled Law in Same Sex Marriage/Partnership Dissolutions

I have pasted below an article from the San Francisco Chronicle that presents the problems of unsettled areas of law. As discussed in my post on Uncertain Results Under Law: A Reason for Mediation, cases involving such unsettled areas of law can be mediated with much greater confidence in the results. The risks involved in creating new law, particularly when the new law will directly affect your custody rights and important property rights, might be too high:

THE BATTLE OVER SAME-SEX MARRIAGE Divorcing gay couples create new legal issues Alimony, property questions have even lawyers confused - Wyatt Buchanan, Chronicle Staff Writer Monday, September 25, 2006.

Gay and lesbian couples in the United States cannot marry anywhere except Massachusetts, but many states that legally recognize same-sex couples now send them to divorce court if they break up. Same-sex couples who break up are finding themselves in a legal morass. State divorce laws conflict with federal tax laws; differences among states' laws can jeopardize child-custody agreements if one or both partners move; and some attorneys are shying away from same-sex divorces for fear of their own liability. Attorneys "are worried that they don't know the answers to a lot of questions, and people are making decisions on what their lawyer tells them to do. There can be liability on the lawyers' side if they make their best intelligent guess that happens to be wrong," said Deborah Wald, a San Francisco family law attorney who works with same-sex couples.

In California, since January 2000, nearly 39,000 couples have registered with the secretary of state as domestic partnerships, a designation open to gay and lesbian couples and some seniors. For the first few years, domestic partners who wanted to break up filed a simple notice of termination with the secretary of state. But that changed in January 2005 when AB205, the Registered Domestic Partners Rights and Responsibilities Act, took effect. Most partnerships now have to go through divorce proceedings, just like married couples, with a few exceptions. Many of the problems arise when ex-partners calculate their federal income taxes.

For example, a California judge might order one to regularly pay the other a certain amount of money, like alimony. But, because the federal government does not recognize same-sex couples, the Internal Revenue Code treats that income as a gift and taxes it at a higher level than alimony. And, although alimony payments are deductible for straight ex-spouses, someone who has left a same-sex union can't take that deduction. Similarly unsettled issues arise with pensions, retirement accounts and other property.

Attorneys and accountants have yet to see what will happen when a couple returns to California to end a partnership and the state court divides property they owned in another state, for instance. "Courts are going to be facing cases involving same-sex relationships that they haven't faced before," said Ellen Kahn, director of the Family Project for the Human Rights Campaign, a national gay and lesbian rights organization. The legal questions are new because there was never such disconnect between states and the federal marriage laws until Vermont instituted civil unions in 2000, and only 113 of those unions have been dissolved.

There is no record of how many partnerships have been registered and dissolved in each California county, though San Francisco has seen 28 since January 2005. But the separation rate seems to be much lower than the nation's divorce rate, which is about 50 percent. California courts have recognized a Canadian marriage and a Vermont union in order to dissolve them. Those dissolutions likely would hold up in a Vermont courtroom, just as an out-of-state divorce decree would, said William Dalton, Vermont's deputy secretary of state. But that remains untested. "This is truly a brave new world for us," Dalton said. "Anyone who steps out first is going to create as many questions as answers."

The most emotional issues surround child custody. As long as a couple stays in California after splitting up -- and the partners did a second-parent adoption or the child was brought into the relationship after the partnership formed -- no unique issues affect them. But many states do not recognize two mothers or two fathers as the parents of a child.

One custody case that many legal observers believe the U.S. Supreme Court will have to resolve involves a lesbian couple who entered into a Vermont civil union and had a child. When they broke up, the biological mother moved to Virginia with the child and renounced homosexuality. A Vermont court has ruled that the non-biological mother has custody rights, while a Virginia court has ruled she does not.

Financial planners and attorneys suggest that couples registering as partners study the option carefully. Domestic partners gain some benefits that used to be available only to married partners, such as the ability to take family leave, sue for wrongful death and collect pension death benefits. "The question is not whether it's good for the couple, but whether it's good for each individual," said Frederick Hertz, an Oakland attorney and co-author of "A Legal Guide for Lesbian and Gay Couples." "The overwhelming majority of straight couples marry without giving much attention to this ... because most married couples have a general sense of how the rules work," Hertz said. "I find the knowledge base in the gay community much, much less." E-mail Wyatt Buchanan at wbuchanan@sfchronicle.com. Page B - 1.

Technology "Hacks"

I would like to extend a big Thank You to Ramani, who hosts Hackosphere, for helping me create the three-column format of this weblog. I had too many links and information crawling down just one side of the former two-column blog and asked for his help in creating the current format. Understanding that hacking CSS codes for Beta Blogger is not my forte, Ramani led me through the steps with great success!

Also a thank you to both Hackosphere and Hoctro's Place for continuing to come up with creative improvements for beta blogs with instructions that even non-techies can handle! These additions include the subject tabs at the top of my blog.

Thank you both!

Mediation & Police: “So we understood them and they understood us.”

In keeping with the East Coast/West Coast theme this week, I have pasted below the full text from a great article in The New York Times this week which highlights one aspect of mediation that sets it apart from other ADR methods and from traditional litigation.

In mediation, the parties are given the opportunity to "clear the air" - to really be heard and to truly listen to the other parties, and sometimes even to apologize. With the help of the mediator, parties are able to better understand where everyone is coming from and to gain a fresh perspective on their own actions and start to figure out what can be done to repair what might have gone wrong. Clearing the air or "venting" in this safe and confidential setting can be therapeutic for some, a relief for others, and usually an eye-opener for the listeners. But for everyone, this clearing of the air helps the mediation process progress to the next stages of negotiation and resolution. Here is the article:
Settling Disputes Across a Table When Officer and Citizen Clash
(Picture caption: Suzanne DeChillo/The New York Times
Officers Leon Guzman, left, and Jack Ng accepted mediation of a complaint that they waved their pistols in questioning suspects in an office. )
By AL BAKER
Published: September 20, 2006
In 1993, at a time when New York City was racked with police scandals, a new city law created the Civilian Complaint Review Board so that accusations against police officers could be handled by an independent agency. Cases would be investigated and then sent to the full board, which would recommend punishment when wrongdoing was found.
Buried deep in the law was an unusual option for the accused and the accusers. It called for mediation, a clearing of the air in which both parties would meet face-to-face in a room with a mediator but without lawyers, to explain themselves and, sometimes, vent their anger. If mediation worked, the case would be closed, the allegation erased.
At first, this option was rarely used — just 14 cases were mediated in 1998, for example — but it has become considerably more common in recent years, especially since Police Commissioner Raymond W. Kelly clarified some departmental controls on the process in 2004, making it far more palatable to officers.
Mediated cases jumped to a high of 113 in 2004, and this year they are on track to go even higher. Through the end of August, 92 of the 5,144 complaints received had been mediated. The percentage is small, but mediated cases take about half as long to send to the board (115 days, on average) as investigated cases (223 days), officials said.
Mediation sessions are closed and the discussions are confidential, but board and police officials recently allowed The New York Times to talk with the participants after a mediation session. What emerged was a glimpse of an unfiltered approach to resolving seemingly intractable disagreements that is not nearly as touchy-feely as it sounds. Sometimes, assumptions and anger can drop away quickly when accuser meets the accused.
Since it is the accused and not the accuser who is wearing a blue police uniform, the approach can seem almost upside down. Some experts call mediation a bad deal for officers, and although many officers are certainly skeptical or dismissive of the process, some who participated said they were surprised by how much they got from it. The officers said they relished the opportunity to explain why they do their jobs the way they do. At the same time, their accusers said that although mediation failed to wipe away their anger completely, it certainly gave them new insights.
“I told them even if it was the White House, we would have done the same thing, so they understand we are doing our job and they wanted to be heard,” Officer Jack Ng, accused of waving his weapon while subduing a suspect, said of the two men who filed a complaint against him and his partner. “So we understood them and they understood us.”
Mediation is not available for the most serious allegations of abuse. In fact, Christopher Dunn, of the New York Civil Liberties Union, said that “because mediation stops the investigation and guarantees there will be no discipline, it should be used in only the narrowest of circumstances involving the most minor of offenses.”
In cases that do come to mediation, the two sides sit across a table in a private space to talk about what led to the complaint. It is a no-holds-barred encounter that can turn emotional; participants scream, curse or cry. Mediators are neutral, not judges, and both sides are protected: An apology from an officer cannot be used in a lawsuit, and an admission by a civilian is not grounds for arrest.
The program is voluntary for both sides. Complaints against officers are not automatically withdrawn if an officer goes to mediation. If either side is unhappy with mediation, then the case could go back to a traditional investigation or end as “mediation attempted.” That happens very rarely, officials said. Instead, the case is usually listed as mediated and both sides sign a “resolution agreement.”
Officer Ng’s experience was cited by both sides as an example of a successful mediation.
He and his partner, Leon Guzman, got a radio call on Oct. 3, 2005: a man with a gun on Grand and Allen Streets. They happened to be on that corner, and they saw two men fitting the description. They left their patrol car, and drew their guns; the men separated, the officers chased them, stopped them, frisked them and eventually let them go.
Mark Gerse and Sam Orlando watched the episode, and their account differed from the officers’. Mr. Gerse and Mr. Orlando were at work in the Lower East Side Harm Reduction Center, a needle exchange office at 25 Allen Street, and to them the officers appeared overzealous.
"These guys came in like it was the Wild West,” said Mr. Gerse, the center’s deputy executive director. “They came in with guns drawn, ready to shoot it up. Anything could have happened; guns could have gone off. That was our basic complaint.”
Mr. Gerse and Mr. Orlando, the center’s health care coordinator, filed their complaint 44 minutes after the episode. Later, the two sides agreed to mediate. They did so on May 16. It took roughly an hour.
It was the first civilian complaint for Officers Ng and Guzman, who work in Transit District 4. Officer Ng, 30, feared that the men would demand an apology. Officer Guzman, 37, said he thought the mediation would end in disagreement. “I thought there might be a little hollering,” he said.
Mr. Gerse and Mr. Orlando were also nervous.
“I thought it was going to turn into a shouting match,” said Mr. Orlando, 46. Mr. Gerse, 50, said, “I was uncomfortable.” He added: “It’s very uncomfortable to be with cops.”
But the perceptions of all four were different afterward.
“I really got to look at police officers in a total new light of respect and where they are coming from,” Mr. Orlando said. “Obviously, these are two highly trained police officers who knew what they were doing and are capable of handling their weapons.”
Officer Guzman said, “We got to say our side of the story, and they seemed to understand. We did everything positively.”
Interestingly, neither side was swayed in its account of what happened. Mr. Gerse and Mr. Orlando say both officers entered their needle exchange office, but the officers said it was only Officer Ng who went inside. Mr. Gerse and Mr. Orlando say the officers had their guns drawn, which could have threatened clients who believe they are in a safe place and might be discouraged from coming back.
The officers say that Officer Ng entered to chase a suspect, and that Officer Guzman stayed outside on the street with the second suspect.
“My perspective was that they went too quick, they jumped too quickly,” Mr. Gerse said. “The bottom line is they just said they would do better and we said we would do better, and we both agreed that our resolve to work together in the future is a good thing.”
When asked, Officer Guzman said he had not discussed his mediation experience with his colleagues. Interviews with other officers indicated a deeper skepticism. Just because they go along with mediation, several said, it doesn’t mean they believe in it.
“They’ll give it a try,” a veteran officer said of his colleagues. “The path of least resistance is what a lot of guys will take. They don’t want to get in trouble; they don’t want to have a bad record. They’re probably intimidated by the system and feel they won’t get a fair shake. So this is a way out.”
As one police supervisor put it, “The feeling is, it’s the least of all evils.”
“In the ideal situation, both parties can understand their actions and reactions,” said Charles M. Greinsky, a former member of the Civilian Complaint Review Board who helped start the program. “They can march back into their respective worlds with a better understanding of the other’s perspective.”
That is not so when cases are investigated, when the two sides cannot exchange information, “so a misunderstanding may remain,” said Florence L. Finkle, the board’s executive director.
The confidentiality agreement that both sides sign shields mediators and participants from being called to testify in any legal proceedings that may come of the dispute. No tape recording is made; any notes are destroyed; lawyers must wait outside the mediation room at the board’s headquarters at 40 Rector Street.
Mr. Dunn, of the civil liberties group, said the case involving Officers Ng and Guzman should never have made it to mediation. “For the safety of the public and the integrity of the C.C.R.B., these kinds of cases must be fully investigated,” he said.
And Maria Haberfeld, the chairwoman of the department of law and police science at John Jay College of Criminal Justice, said she believed mediation could only hurt police officers, especially if their actions were within departmental guidelines.
Much of what occurs in police work is outside the view of most civilians, she said, so the public sees a slice of a situation and often makes inaccurate judgments. The sides are inherently unbalanced: one has power to use force in society, the other does not.
By entering mediation, officers are surrendering some authority; the process itself can be the punishment, Dr. Haberfeld said. “The connotation is, you have already indicted the officer,” she said. “You are already coming from the perspective of the officer doing something wrong.”
The board has 30 to 40 mediators available. Half are lawyers and the rest come from fields like human resources and social work. Mediators are required to complete a 40-hour state training course in mediation theory, as well as follow-up practical training by the state. Before joining the board program, they must have two or three years’ experience mediating, and undergo two one-day training courses, one at the board and the other at the Police Department, said Andrew Case, a spokesman for the board. He said refresher training courses are also given.
Ms. Finkle said it is decided that a complaint case may best be resolved with mediation rather than investigation, roughly 75 percent of city officers accept it, though more than half of the civilians reject it.
Governments in other states, and other nations, are calling to ask questions about how to adapt the program. Officials from Oregon and Michigan, for instance, as well as from London, Bolivia, Uzbekistan and Russia have expressed interest.
Commissioner Kelly said he hoped the trend toward more mediation continued.
“I like the concept of mediation,” he said. “I think it’s win-win for both the public and for police officers who receive complaints. It gives everyone an opportunity to express their position.”

Confidentiality: How Private is Mediation?

One of the reasons parties choose to mediate their disputes is the privacy afforded by the mediation process. So how private is mediation? In California, mediation confidentiality is nearly absolute.

In a contested divorce case, feuding spouses spend thousands of dollars to have every aspect of their private lives displayed in open court for all to witness with each word recorded by the court reporter. The majority of all divorce hearings are in fact held in a public courtroom where anyone, including members of the parties' communities, members of the press and other strangers, can and do sit in court and watch as parties pour their hearts out and discuss details of their personal lives, their children's lives and of their personal and business finances. It can be embarassing as well as stressful for all involved.

Mediation, on the other hand, is designed to be a private process with laws that protect everything that is said and prepared for the purpose of mediation from being disclosed outside of the mediation for any purpose unless all parties to the mediation agree otherwise.

Mediation takes place in the very private setting of one or more private conference rooms or offices. The only people present are the mediator and the individuals needed to make decisions (i.e., the parties and attorneys). There is no court reporter to record what happens. Mediators destroy their notes and files after the completion of the mediation and cannot be subpoenaed to testify in any legal proceeding on the matter (with certain potential, but extremely rare exceptions in cases of significant competing public policies).

There is a strong public policy in California to promote settlement and to encourage Alternative Dispute Resolution processes such as mediation. Protecting the privacy and confidentiality of the mediation process is intended to - and does - further that goal by promoting open dialogue and the exchange of key information to help foster meaningful settlement discussions.

World Directory of Alternative Dispute Resolution Blogs

I received a warm welcome to the World Directory of Alternative Dispute Resolution Blogs this week in a post from Diane Levin, the creator of the Directory, which tracks alternative dispute resolution weblogs around the globe, as well as the ADR weblog MediationNewsOnline.com.

Diane's post is titled: "East coast, west coast: Two new blogs explore conflict resolution." I am happy to be representing the West Coast with San Francisco Mediation, and to have East Coast representation from the New York Center for Interpersonal Development's Blog Spot. (My two favorite cities!!)

I have since received additional welcomes from mediators around the country, including Vickie Pynchon of Settle It Now Dispute Resolution Services in Southern California and Dina Lynch of http://mediationmensch.blogspot.com/ in Boston, Massachusetts. Thank you to everyone!

It's great to be part of a community which takes pride in helping to reduce conflict in society while also helping other members of the ADR community to become better at what we do while spreading the news about ADR!!

Kids & Divorce: Mediation, Education & Visitation Help

I watched a show on KQED Public Television the other night called "Kids and Divorce: For Better or Worse" which all divorcing parents should watch. You can click on the link above and order the one-hour video.

The show features children going through the difficulties of their parents' divorce, including their heartbreaking requests for their parents to stop fighting, to stop the negative comments about the other parent, to stop making them choose between their parents, as well as their concerns and confusion about what divorce really means and whether kids can be divorced too.

The show included many Family Law experts such as therapists, judges, mediators and attorneys discussing ways to minimize the suffering of the children, which each of the experts has witnessed and has proactively worked to reduce in the families with whom they have worked. All of the experts are strong supporters of parents working together to reduce their own fighting and hostility for the mental and emotional health and safety of their children. This includes mediation, education and, in some cases, assistance with visitations.

Kids' Turn (divorce education for families going through divorce) and Rally Family Visitation Services (supervised visitation and supervised exchanges), which both provide services for the San Francisco Bay Area, were featured as important child-centered projects which assist divorcing parents and their families in maintaining strong parent-child relationships during this difficult time.

From the Kids' Turn website: "The goal of Kids’ Turn programs is to help minimize the negative effects of divorce on children. The programs are educational (not therapy) focusing on skill building and positively affecting each family’s ability to manage the changes created by divorce or separation."

From the Rally website: "When your family is in conflict, Rally Family Visitation Services is a safe, positive environment dedicated to your child's future. Rally provides a healthy, neutral environment with professional staff and trained volunteers who supervise visits and exchanges between children and parents. These services are designed for children who may be at risk of emotional or physical harm following their parents' separation or divorce."

As a Family Law attorney and mediator, I have always recommended these projects to families, and with great success. I strongly recommend all parents consider these as options in their divorce or custody matters.

Why Prepare a Mediation Brief in a Civil Case?

A Mediation Brief or Mediation Statement is important for many reasons in civil cases.

A Mediation Brief is your opportunity to inform the mediator of all of the relevant facts, background and history of your case and of the parties themselves. It is your opportunity to explain your analysis of the law with your facts and to show the strengths of your case not only to the mediator, but also to your opponent.
The more information you give the mediator to work with, the better it is for all parties involved in the process. The mediator is neutral, but you don't want to start out by deliberately putting the mediator at a disadvantage in knowing less than the mediation participants about the dispute. The Mediation Brief should bring the mediator up to speed on your case in order to help the participants find and work toward solutions.

Although mediation is not an adversarial process, and there is far less "zealous advocating" in mediation than in the courtroom, it is still an opportunity to show your opponents that you have a serious case, that merits serious attention and, if the case does not settle in mediation, that your case has a strong chance of success in court. Give your opponents good reason to want to resolve the case through a negotiated resolution in mediation.

This is also your opportunity to present your case to an independent mediator for feedback on your strengths and weaknesses and to get confirmation of your own ideas of what the case might be worth from an independent source. Mediators vary in their approaches of whether or when to give their own views of the value of a case, but there is usually room for some discussion on the topic with a mediator that does not infringe on the neutrality of the mediator.

The process of drafting the mediation brief is helpful for you too; you can organize your thoughts and arguments and also recognize areas where more investigation, information or legal support is needed. When you are forced to put your case onto paper, you are talking yourself through your entire case, better preparing you to discuss the facts, damages, law and potential remedies in the mediation itself.

My suggestion: don't skip this important step!