Tuesday, December 26, 2006

Sharing the Holidays

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

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

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

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

Thursday, December 21, 2006

"How Is A Mediated Settlement Enforced?"

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

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

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

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

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

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

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

Saturday, December 16, 2006

Another Thank you to Ramani at Hackosphere

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

"Is Mediation Like Trial?"

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

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

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

Saturday, December 09, 2006

"Mediation Preferred Over Court to Resolve Housing Disagreements"

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

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

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

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

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

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

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

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

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

Thursday, December 07, 2006

A Wealth of Information About California Divorce Procedures and Requirements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, December 05, 2006

No Switching of Mediator and Attorney Roles

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

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

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

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

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

Monday, December 04, 2006

What if Mediation Does Not Settle the Case?

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

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

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

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

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

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

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

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

Friday, December 01, 2006

Who Pays for Mediation?

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

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

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

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

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

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