Sunday, August 27, 2006

Divorce Mediation vs. Civil Mediation

Divorce mediation has as its goal the same goal as all other mediations: agreed upon resolution. However, the process for the two types of mediations is quite different in my practice.

In Civil Mediations (employment disputes, contract disputes, landlord/tenant disputes, etc.), the parties typically already have available to them the information necessary to make decisions. In a sexual harassment employment case, for example, well before the parties find themselves in mediation, the plaintiff employee has made his/her claims of harassment known to the defendant employer (whether through an informal, administrative or legal complaint) and the defendant employer has made its position regarding its responsibility for the claims known to the plaintiff. When the parties sit down to the mediation, they have already provided detailed mediation briefs to the mediator and have exchanged these briefs with the other parties as well. The briefs include such information as the details and legal bases of the claims and defenses, the estimated damages or harm resulting from the alleged harassment and the factual bases of these estimates (i.e., lost wages, medical costs, etc.).

The civil mediation process therefore begins with all of the information necessary for decision-making already in the hands of the parties who will be making the decisions. This is not to say that additional and very important information does not often come out in the mediation process itself after discussions with the mediator, but the basic information is already known and has already been gathered by the parties. This allows the mediator to move forward right into the collaborative negotiation process and onto a satisfactory negotiated resolution between the parties. Civil mediations typically are resolved in one session which may last from a few hours to an entire day. Some mediations do not resolve that same day but are eventually resolved through the continuing efforts of the mediator and the parties through telephone calls and e-mails. Some civil mediations take place over the course of two or more sessions, but those are the exception and not the rule.

Divorce Mediations do not follow the same pattern as the typical civil mediation. To begin with, the parties to a divorce mediation meet with the mediator for a short initial mediation session to ensure that the parties are prepared to mediate their dissolution of marriage or partnership and that both the parties and the mediator are comfortable working together. The divorce and mediation processes are explained to the parties. Preliminary decisions are made regarding whether or not the parties will be represented by attorneys, how the parties will pay for the mediation, and whether the parties need assistance in preparing and filing the necessary documents with the court to initiate and finalize the dissolution process. The parties are given forms to complete, called "Financial Disclosures," which are required by the courts for an enforceable settlement agreement as well as a finalized divorce and which the parties should bring to the next mediation session.

During the second mediation session, the mediator works with the parties to outline the issues which need to be discussed and resolved based on the financial disclosures and the parties' interests. Once a working agenda is set, the mediator discusses each agenda item with the parties to begin gathering all information necessary for the parties to make informed decisions regarding their issues. The parties determine what additional outside information is needed, if any, such as home or business appraisals, retirement or investment accountings or appraisals, or information regarding children's needs. The outside information gathering takes place between the second and third mediation sessions.

If minor children are involved, one session is typically required to resolve all issues including: custody, visitation/holiday schedule, support, education, medical needs, etc.

Once all of the outside information has been gathered, the final mediation session is typically purely collaborative negotiation, working together to figure out options and solutions which work for the parties' unique circumstances. This does not mean that no decisions have been made prior to this session. Typically, the parties are making decisions and coming up with solutions for many details of the dissolution during the prior sessions as well. But no decisions can be made on those items which required outside information. Once decisions are made regarding these final issues, the mediator can prepare the settlement agreement. Because I am an attorney, I can prepare the actual Marital Settlement Agreement the parties file with the court (as opposed to a Memorandum of Understanding which needs to be turned into a Marital Settlement Agreement). Once the six month time period has passed from the initiating of the divorce, the final papers are filed with the court and a final Judgment of Dissolution is granted.

There are of course other details and information which I discuss with the parties with whom I am mediating, but this is a rough sketch of the typical mediation process for these cases. For more information, see my website:

Thursday, August 17, 2006

I am a mediator because ...

I am a mediator. I was a mediator even before I completed my first 40-hour mediation skills training course or my first mediation. I am a mediator because I believe conflict is counterproductive to meaningful progress in any arena and regardless of the issue. I believe that working together toward creative solutions to problems is a far better option than losing power over your choices and allowing a judge or arbitrator to impose a ruling.

Mediation has been defined as "An attempt to bring about a peaceful settlement or compromise between disputants through the objective intervention of a neutral party." The mediator is that neutral party who works to discover the underlying issues to a dispute and works with the parties to find creative solutions or workable plans that satisfy the needs and desires of all parties. For any of us who have divorced parents, or for those of us who have children, nieces or nephews, we probably have experience acting as a "neutral party," which simply means being truly neutral and unbiased in not favoring one over the other and recognizing the significant problems that could be caused in favoring one side over the other.

While I recognize that some people have difficulty in feeling and acting neutral under these circumstances, I am not one of those people. And I would venture to say that people with this difficulty probably would not have the desire to be a mediator, but that certainly does not limit them or anyone else from working with a mediator to resolve their own disputes.

The process of mediation is - or should be - unlike a court settlement conference in which parties are urged by the settlement conference judge to get the case off the court docket and resolved, regardless of how that is done, usually by splitting the difference between the positions of the parties or pressuring one side to compromise everything just to get the case resolved. Mediation truly is a process which is guided by the skilled mediator to allow for all parties to be heard in order for the mediator to successfully work with all parties toward an agreed upon solution that satisfies everyone's needs. It is similar to the difference between "fast food" and "slow food." The former is intended as a method to get alleged nutrients into your system, but which leaves you with an upset stomach and bad taste in your mouth. Meanwhile, the latter method has the same stated goal of getting nutrients into your system but provides healthier nutrients in a creative and healthy manner and which, at the end of the meal, leaves you feeling satisfied with no bad taste in your mouth and no sick stomach. Mediation is slow food.

Mediation requires good listening and communication skills, good people skills and, above all, patience. Recently, I spoke with an esteemed partner of a large San Francisco law firm before we were to give our respective presentations on Effective Marketing Skills for Young Lawyers for the Bar Association of San Francisco. He was curious about my mediation practice and I informed him of my background and how it led me to mediation. He mentioned that he has seen many judges become mediators after their retirement from the bench and that, in many cases, he could not imagine these former judges as mediators precisely because of the lack of patience exhibited on the bench. I believe that patience is one of the absolute most important characteristics for a mediator to possess, well above knowledge of a particular area of law. A mediator can educate himself or herself on a new area of law, but a mediator cannot learn the art of patience and listening or neutrality.

There are so many reasons that I became a mediator, even beyond my own internal pull toward conflict resolution and away from the world of what can be very ugly, gamesmanship litigation. Many of my reasons are based on the areas of law in which I have practiced and many are based simply on the litigation process itself. In general, the reasons that I became a mediator are the same reasons that I believe in mediation as the first stop in trying to resolve a dispute that cannot be resolved through direct communication. I believe in mediation so much that I have always included a mediation clause in my attorney retainer agreements with clients and in every comprehensive contract I have ever drafted for clients - whether that be a prenuptial agreement, marital settlement agreement, employment contract or real estate agreement.

Mediation makes more sense than litigation, costs less money, takes much less time and can be far more rewarding than a litigated result. More on that to come...

Paula M. Lawhon
Mediator & Attorney
San Francisco, California