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!

Should You Agree to Use a Mediator Recommended by Your Opponent?

Yes, but only if you have done a little research on the mediator first.

Mediators are trained to be neutral and unbiased in dealing with mediations and the mediation participants. Even if a mediator has worked with a certain individual or company several times, unless they are actually on the payroll of the company or the spouse of one of the participants, they are most likely going to meet the standards of their profession in being neutral and fair.

One advantage of using a mediator recommended by your opponent is that the mediator is already known and trusted by the other side. This means your opponent is more likely to be fair and reasonable when the mediator seeks concessions or "good faith" negotiations from them. And, the mediator may be able to give you some insight into your opponent and their strategies.

If your opponent recommends a mediator, look the mediator up on the Internet, get a resume or biography and make sure you are comfortable with the areas of the mediator's expertise. If you are still uncertain, schedule a half hour meeting with the mediator just to get to know him/her a little more and discuss your concerns and get answers to specific questions. This allows both you and the mediator to be more familiar, and therefore, more comfortable with each other during the mediation process itself. This also allows you to relax and focus on the substance of the process and working toward a satisfying result.

Can You Mediate After a Lawsuit Has Been Filed?

Absolutely yes! You can contact a mediator, have your attorney contact a mediator, or talk to the other parties in your case about mediating the case at any stage of the case, either before the case is filed or while the case is pending in court.

I have mediated cases well before a lawsuit was filed. I have mediated cases just after the lawsuit was filed in court, and I have mediated a case just before trial, and prior to arbitration proceedings. Mediation is such a flexible option that can be introduced at any stage of the case. However, there may be very good reasons for wanting to negotiate a resolution through mediation before significant time, efforts, emotions and money are invested in the case.

The California Rules of Court require that all plaintiffs filing a civil lawsuit must serve a copy of the Alternative Dispute Resolution Packet along with the Complaint. Here is a link to the ADR Packet for San Francisco. It is intended to give litigants an overview of all of the ADR options, including binding and nonbinding arbitration, early settlement evaluation as well as mediation.

Mediation Questions?

The reason I started writing this San Francisco Mediation Blog is because I find that while many of my clients have heard of mediation, the vast majority do not know what it really means or what it involves. Many do not understand the role of the mediator as a "neutral." Many do not understand the difference between mediation, arbitration and litigation. Many do not know whether they can go to mediation if there is not an actual lawsuit pending (yes, you can). And, many do not know what to expect if they are about to get into a mediation. That is the purpose of my blog.

Whether you know me, know about me, or don't know me from anyone, but you have a question about mediators or anything about the mediation process, please ask. You can e-mail me with a question (paula@lawhonlaw.com) or you can post a question here (http://sfmediation.blogspot.com). I am interested in helping people understand mediation. I will answer your question with a blog entry and hopefully it will help not only you, but someone else as well.

The Difference Between Mediation and Arbitration

In addition to being a mediator, I'm also an arbitrator. These two roles are only slightly similar. Each requires different training and skills and involves a completely different process. Just like tennis and racquet ball, which are somewhat similar: both involve a racquet, a similar size and shape ball and, typically, two players. But everything else is different: the way you swing the racquet, what you are supposed to do to the ball, what the ball can do to the players, as well as very different courts and rules. Just like mediation and arbitration.

Arbitration and mediation are both subsets of the Alternative Dispute Resolution family. Both are options (well, sometimes they are mandatory "options") which are intended to provide faster, private and more economical resolution to the disputes of parties without clogging up the already crowded court dockets. Both take place in informal settings - typically large conference rooms. And that's where the similarities end.

Mediation is the more informal process in which the parties are empowered to make their own decisions with the help of the mediator, who obtains key information from the parties and works to find solutions with the parties. There is no witness testimony and there is no cross-examination. There is a lot of talking, thinking and negotiating - a lot of back and forth and compromises from all sides. Other than rules of courtesy and respect, there are generally no set rules for mediation. This is nothing like a typical court proceeding or trial.

Arbitration on the other hand is very similar to a court proceeding. The arbitrator acts very much like a judge and is there to receive evidence (documents and witness testimony) and to render a decision which may or may not be binding on the parties (depending on the case). The parties have no part in making any decisions about their own case and the parties must follow specific rules and abide by the decision made for them.

Employers often require employees to sign Arbitration Agreements as a condition of employment. Enforceable arbitration agreements (not all of them are enforceable) generally require that the employee and employer submit any disputes to "binding arbitration," with each giving up his/her right to a jury trial. Employers do this in order to avoid public and costly court trials. California law allows this because "public policy" in favor of ADR, including arbitration, is currently stronger than the public policy in favor of an individual's right to a jury trial. This is a hot topic in California right now and may eventually change.

An arbitration agreement does not eliminate the possibility of mediation. Most employers and employees, when faced with the time and costs involved in arbitration, would still like to see the case mediated. Mediation remains the least expensive and most efficient manner of resolution for everyone.

Starting the Mediation Process- An Employment Case

Let's say you are not represented by an attorney, but you have heard about the benefits of mediation, that it saves time, money and your sanity. And it turns out that you are short on at least one of the three, making the pursuit of litigation for the next couple years an unattractive option.

Ok, so you are not represented by an attorney and you want to get a fair resolution in your wrongful termination case against your employer but you have not found an attorney to work with. But you do have a feeling that your former employer is just as interested as you are in putting this issue to rest.

You do some research and find a mediator you think has the right experience in handling employment cases and has the right attitude in being fair and impartial but persistent and dedicated in her approach to mediating cases. You contact the mediator and explain that you are self-represented, that you have (or have not) filed a civil lawsuit and that you would like the mediator's help in getting the employer's agreement to mediate this case. You explain that you are pursuing mediation to save everyone time and money so you can get a fair result and take a well-deserved vacation before starting your next job. (Or you leave that last part out.)

The mediator writes a letter and calls the employer to discuss mediation in this case. The mediator discusses the employee's desire to mediate an early settlement as a strong incentive to get an agreement to mediate from the employer, because that is likely the first common ground to be found between the parties. The mediator relies on the employer's own interests in avoiding drawn out public litigation which may be bad for business because of negative publicity as well as the financial drain in attorney's fees to defend an employment lawsuit and possibly paying higher insurance premiums.

Once both parties have agreed to mediate, a mediation date is set, briefs are prepared and the mediation is underway.

Alternatively, if you are already represented by an attorney, you can tell your attorney about your idea and the mediator you have in mind, or you can contact the mediator directly and have the mediator contact your attorney and the other parties to discuss a "cease fire." Attorneys frequently raise the possibility of mediation with their clients, as it is usually in the best interests of the parties to at least explore this Alternative Dispute Resolution option as early as possible to avoid incurring significant fees and costs when a mediated result is possible.

Court-Based Custody Mediation

In a custody dispute (whether the parents were married or not and whether in the context of a divorce or not), many parents find themselves in court waging an emotional, stressful and painful fight over the parental rights of their children. These disputes include whether Legal Custody will be shared or not, whether Physical Custody will be shared or not, and what the regular and holiday visitation schedule will be for both parents.

Since 1981, California law has required parents to go through mandatory court-based mediation with court-employed Marriage and Family Therapists (MFTs), who are also trained as mediators, to attempt informal resolution on all custody and visitation issues before a judge will hear the arguments of the parents and make any decisions.

When the parents cannot come to an agreement on their disputes with the help of the court mediator, the parents' next step is typically a contested court hearing where the judge will make the decisions which the parties could not make between themselves. This involves not only more time, and more money for attorneys' fees, but it also removes the parties' power to make their own decisions and places that power in the hands of the judge who knows very little about the parties, the children and everyone's lives and needs.

While court-based custody mediation is mandatory for all custody and visitation disputes, any other related issues, including child support, spousal support, reimbursement issues or valuation and division of any property, is not permitted to even be discussed in custody mediation provided by the courts. Family Court Services mediators are strictly limited in the issues they can discuss and work with the parties to resolve.

On the other hand, the private mediation services I provide for families includes custody and visitation issues (i.e., preparing a parenting plan and visitation schedule with the parties, focusing on the children's best interests) but also includes all the other related financial issues which arise in custody cases as well as the often concurrent divorce (i.e., support, reimbursement and property issues). I help parties to resolve all of their issues by listening to both sides, helping to find creative solutions, improving communication and ensuring that the solutions conform to California laws, based on my experience as a Family Law attorney and mediator.

International Mediation Involvement - Politics

Here is an example of international mediation efforts from a story in today's headlines. Imagine the complexity of historical, political and emotional factors contributing to this negotiation and imagine the level of skill required by the unnamed mediator to open up a dialogue and create "an effective channel of communication." I have highlighted key issues regarding the mediation effort in this short article.

This article by DONNA ABU-NASR, Associated Press Writer
JIDDAH, Saudi Arabia - U.N. chief
Kofi Annan said Monday he would appoint a mediator for indirect talks between Israel and Hezbollah on the release of two abducted Israeli soldiers, the first public word of negotiations between the bitter enemies since fighting in Lebanon ended.

The announcement raised the possibility of a prisoner swap to win the soldiers' release, an exchange which Israel has repeatedly rejected, at least in public. Until now, Israel had insisted that it would not hold any contacts with Hezbollah, but its government has been under increasing domestic pressure to bring the two home.

The agreement on the mediation effort could mark a breakthrough on an issue that is crucial to preserving the fragile 3-week-old cease-fire that ended 34 days of Israel-Hezbollah fighting. Israel mounted its offensive in Lebanon after the Shiite guerrillas seized the two soldiers and killed three others in a cross-border raid July 12.

The U.N. cease-fire resolution that ended the fighting on Aug. 14 urges the unconditional release of the two soldiers. Hezbollah has said it would free them only in a swap for Arab prisoners held by Israel.

"Both sides have accepted the good offices of the secretary-general to help resolve this problem," Annan told a news conference in Saudi Arabia's Red Sea port of Jiddah. "I will designate someone to work discreetly and quietly with them to find a solution." "The only thing that I insisted on is that if I'm going to use my good offices, then my mediator should be the only mediator," he said. "There must be one mediator and effective channel of communication." Annan said he would not announce the mediator's name to allow him to work quietly.

Annan did not say whether a prisoner swap was on the agenda for the mediation effort, and Israel on Monday repeated its stance demanding an unconditional release of the soldiers.
Asked about the mediation effort, Foreign Ministry spokesman Mark Regev said that during Annan's visit to Israel last week, "we urged him to bring about the full implementation of
U.N. Security Council resolution 1701, which calls for the immediate and unconditional release of the hostages. "

Full article is available here at YahooNews.com.

A Personal Injury Mediation- Car Accident

Here's an example of a recent personal injury mediation from a serious car accident (with some details changed to protect the privacy and confidentiality of the parties and the mediation):

The parties at the mediation were the injured woman (the plaintiff) and her attorney as well as the insurance carrier and the attorney appointed by the insurance carrier to defend the driver against the plaintiff's claims of serious personal injury from the car accident. The driver was not present because the insurance carrier and its attorney were there to represent his interests and they had the authority needed to make the decisions. (This is why we pay for car insurance.) The plaintiff was seeking almost $1 million in damages.

The parties had submitted mediation briefs with the facts, claims, defenses, medical claims and out-of-pocket costs, medical liens from the health insurance company and information from the carrier's accident reconstructionist.

After a joint session with brief openings by the attorneys, separate caucuses were held to discuss with the plaintiff her demand for financial compensation of her injuries and costs and to discuss with the insurance carrier its position on the driver's liability (including questions of comparative fault for the plaintiff's own actions) and what it was willing to pay for this claim.

Both parties had chosen to mediate this case in an effort to avoid a costly trial which would include expert witness testimony on accident reconstruction, toxicity and other issues, and would also consume at least a week or two of trial time, significant attorney's fees and costs in preparing the case for trial, and uncertainty in the outcome.

There were uncertainties for both sides which made mediation a great alternative to trial. A jury might: a) sympathize with the plaintiff for her injuries and emotional suffering and award the plaintiff an amount in the hundreds of thousands of dollars; b) compensate the plaintiff for her medical costs but nothing else, since she had made a full recovery; or c) see this as just an accident, with both parties to blame for the collision and award nothing. The jury would probably do something in between "a" and "b" and all the parties were aware of this.

This uncertainty, as well as the ability to resolve the case months, and sometimes years, before the parties will ever get to trial, and get a solution which satisfies the parties, is one of the reasons this personal injury case and many others like it, are resolved in mediation. The parties, their attorneys and the mediator work together to come up with solutions everyone can live with and that's what happened in this case. The plaintiff was compensated for her medical costs and for some of her emotional distress. The carrier was out a significant amount of money but which was far less than it could have paid in attorney's fees and costs to defend the case as well as whatever verdict was returned by the jury. Everybody was able to close the case and move on with their lives, satisfied that compromises were made and satisfaction was achieved.

Outstanding Volunteer Attorney Award

This is a picture of me with California Chief Justice Ronald George (on the right) and San Francisco Superior Court Presiding Judge Robert Dondero (on the left), after I was presented with an Outstanding Volunteer Attorney Award (which looks nicer than that orange envelope in which it was presented).

Many attorneys received awards at the San Francisco Bar Association ceremony earlier this year. This supports my theory that the legal profession is a helping profession and that, like so many other noble professions, too often the bad ones taint the reputations of the rest of us. I just want the public to know there are so many of us who are giving back to our communities. The Volunteer Legal Services Program of the San Francisco Bar Association is just one of the ways.

What Does The Mediation Table Look Like?

The Mediation Table varies depending on the type of case as well as what stage of the mediation the parties are in and the dynamics of the particular mediation.

In a basic two-party non-divorce mediation, everyone starts in a "Joint Session." Parties are typically then separated out into "Caucuses" and sometimes they all return to the Joint Session. A basic two-party dispute could be a disagreement over a contract, a landlord/tenant dispute or a personal injury matter and looks basically like this, with many variations:

Joint Session: The mediator introduces herself to the parties or counsel she does not already know. She has everyone sign the Confidentiality Agreement (more in a later post on this), discusses the basics of the dispute as she knows it and turns it over to the parties to provide summaries of the dispute. These "Opening Statements" by the parties are brief, five to ten minute openings in which the other parties are expected to listen, but not engage in a debate, which could foster defensiveness and hostility instead of cooperation and collaboration.

Caucus: After openings are concluded and everyone knows why they're at the mediation table, the mediator separates the parties in order to have private discussions with each party. The mediator asks questions and discovers information which is below the surface level of the stated disputes (e.g., why is this issue so important to the particular party?) and is able to work with all parties to discover common ground the parties might never have realized existed, as well as alternative and creative solutions for the unique circumstances of the parties.

Additional Joint Session: Often, when communication has improved and the emotional, counter-productive behavior has subsided, the mediator may return the parties to Joint Session to finalize certain details of the agreements made and have everyone sign a written statement of the terms of the agreement. The mediator then congratulates the parties on resolving their disputes amicably and voluntarily without the need for protracted (or continuing) and expensive litigation. This may have taken three hours or may have taken nine hours. Either way, the parties are to be congratulated for a job well done!

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