Tuesday, November 28, 2006

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?

Wednesday, November 22, 2006

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!

Friday, November 17, 2006

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.

Thursday, November 09, 2006

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.

Tuesday, November 07, 2006

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...

Saturday, November 04, 2006

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.