Monday, October 30, 2006

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.

Saturday, October 28, 2006

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.

Thursday, October 26, 2006

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.

Saturday, October 21, 2006

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.

Thursday, October 19, 2006

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

Tuesday, October 17, 2006

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.

Friday, October 13, 2006

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!

Friday, October 06, 2006

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.

Thursday, October 05, 2006

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.