"We Agree On Everything - Do We Still Need Mediation For Our Divorce?"

Answer: Maybe; and it might be a great idea!

I often receive calls from couples who have decided to work together to dissolve their marriage amicably and they are not certain whether it's a mediator or a lawyer they need to help them accomplish this goal. Because I provide both services, I explain the differences and the situations in which one might be preferred over the other.

Mediation is a great option when parties are unable to communicate and negotiate directly with each other to find a resolution of their disagreements or disputes. A mediator assists the parties by asking the right questions, directing the discussions in a productive manner and helping the parties make reasonable and rational decisions based on all the information and to reach settlement and finalize a case efficiently.

In divorce mediations, mediators usually prepare not only the Marital Settlement Agreement that results from the mediation sessions, but the mediator also assists the parties in getting the divorce action filed and finalized in the court (although attorneys are involved in reviewing and finalizing the settlement agreement).

In the case of a divorcing couple who have already agreed on how they will divide their community property assets and debts, whether, how much and for how long spousal support will be paid, and all issues regarding children (custody, visitation and support) and taxes, there may be no need for a neutral third party to facilitate discussions, but the mediator can still be extremely valuable in preparing a balanced agreement which meets the needs and desires of both parties equally instead of being drafted by one party's attorney and then getting shuffled back and forth between attorneys trying to balance it back out.

So, while a divorcing couple with agreements on all issues may not need a mediator, but may find a mediator to be quite useful in getting a fair agreement drafted up quickly, some divorcing couples with agreements may instead choose to simply use one party's lawyer to get the job done.

In that case, one party can hire a lawyer to file the divorce action and to prepare the draft settlement agreement and remaining judgment paperwork. The second party will hire their own lawyer to review and make any needed changes to the settlement agreement and will prepare that party's financial disclosures. The attorneys will gather all signatures and get the paperwork filed with the court in order to finalize the divorce.

This assumes there is agreement on all issues. If the parties discover there is disagreement on some or even just one issue, a neutral mediator can be called in for the limited purpose of helping to resolve the remaining issues and/or to draft up the agreement.

If the parties are unsure whether they have agreements on all issues, mediation is a great place to start productive and organized conversations to identify the issues and figure out where the parties are in agreement and where the parties may need assistance in reaching their agreements. Or, if the parties meet with their own attorneys first and then decide to mediate their agreement and work together collaboratively to reach their settlement, they still have that option at any time.

In divorce mediation, the couple can start with mediation before filing anything with the court, they can start mediation after the case is filed, and can also mediate their divorce whether or not the parties have their own attorneys involved in the case. Mediation can always be used as a powerful tool for the parties to stay out of court, reduce their attorney's fees and the time spent fighting; so no matter where you are in your case, mediation is still an option to be considered to help you both get to where you want to be.

**This post previously appeared in March 2007 and has been revised and updated**

If Your Contract Requires Mediation Before Court, Mediate!

If the contract you signed states that the parties agree to mediate any disputes, you must comply with that provision and mediate before you run off to file any type of lawsuit, or else your lawsuit will be dismissed. All types of contracts can have a mediation provision (which is different from an agreement to arbitrate), including real estate purchase agreements, lease agreements, employment agreements, premarital agreements, marital settlement agreements or any other agreement.

Here is a short article from the National Arbitration Forum, titled: "Failure to Comply with Contractual Obligation to Mediate Results in Dismissal of Case"

A California federal court determined that the failure to mediate a dispute pursuant to a contract that made mediation a condition precedent to filing a lawsuit warranted dismissal.

In Brosnan v. Dry Cleaning Station Inc., No. C-08-02028 EDL, 2008 WL 2388392 (N.D. Cal. June 6, 2008), Brosnan entered into a franchise agreement with Dry Cleaning Station. The franchise agreement included a provision, which required both parties to enter into mediation of all disputes prior to initiating any legal action against the other.

Thereafter, Brosnan filed an action against Dry Cleaning Station alleging state law claims relating to fraud and breach of contract. Dry Cleaning Station filed a motion to dismiss Brosnan's complaint based on Federal Rule of Civil Procedure 12(b)(6) on the grounds that Brosnan failed to engage in mediation of the dispute prior to filing their lawsuit as required by the franchise agreement.

In response, Brosnan sought a stay of the matter rather than a dismissal. The Court stated that a claim filed before satisfaction of a condition precedent, such as a mediation requirement, should be dismissed.

In this instance, there was no dispute that Brosnan did not pursue mediation prior to filing the lawsuit. Under these circumstances, Dry Cleaning Station opted for dismissal. The Court granted Dry Cleaning Station's motion and dismissed the case.

The Court noted that in contrast to mediation, where a plaintiff attempts to exhaust its arbitration remedy or raises issues not susceptible to arbitration or not covered by the arbitration agreement, a stay rather than dismissal of the lawsuit is appropriate.

Mediation Confidentiality

One of the first things I do in a mediation is to explain to the parties that everything that happens in the mediation is confidential unless there is a written signed settlement agreement or other signed forms that will be filed with the court from the divorce mediation case. Before the mediation even gets started, the parties sign my Agreement to Mediate, which explains more about the confidentiality of mediation and what it means.

The California Supreme Court has just issued a ruling which strengthens the laws which already protect everything said, done or prepared in mediation from being used in any type of proceeding unless everyone agrees in writing to its use.

Here is an article from the Metropolitan News Enterprise (www.metnews.com), which provides the background of the mediated dispute in that case and the actions of the mediator and the parties. The California Supreme Court held
that it didn't matter that in the court proceedings following a terminated mediation, a party had not previously objected to the use of otherwise confidential statements in the proceedings to enforce the unsigned settlement. The court held that there is no exception to the rule of mediation confidentiality unless the parties signed the settlement agreement, thereby making the agreement no longer confidential.

Here is the article and the link:

No Estoppel Exception to Mediation Confidentiality, S.C. Rules

By KENNETH OFGANG, Staff Writer

The California Supreme Court took a strict view of mediation confidentiality yesterday, unanimously ruling that statements made during the process could not be used to bind a party to a settlement agreement she did not sign.

Reversing a Los Angeles Superior Court judge and Div. Three of this district’s Court of Appeal, the high court overturned a breach-of-contract judgment against Dr. Lida Ghaderi, a Santa Monica physician.

The judgment grew out of a malpractice claim by the family of Ghaderi’s patient, Kintausha Clemmons, who was being treated by a nephrologist, who was treating her with dialysis for renal failure. Without consulting with Clemmons’ nephrologist, Ghaderi allegedly took Clemmons off dialysis, resulting in her death from severe renal failure.

Consent Form

During mediation before retired Los Angeles Superior Court Judge Robert T. Altman, Obi Amanugi—a claims specialist from Ghaderi’s malpractice insurer—obtained Ghaderi’s written consent to settle the case for no more than $125,000. The consent form provided that the consent could only be revoked in writing.

By statute, a claim against a health care professional covered by a professional liability policy can only be settled with the insured’s written consent.

During the mediation, while Ghaderi was in another room with her Cumis counsel, Robert C. Reback, the claims specialist and the insurer’s attorney, Kent T. Brandmeyer, told Altman the carrier would pay the plaintiffs $125,000 to settle. The plaintiffs accepted.

But when Altman was reducing the settlement to writing and Amanugi reported the settlement to Ghaderi, she responded, “Good, because I am revoking my consent.” Soon thereafter Ghaderi left the building, ending the mediation.

Altman, the plaintiffs, and their counsel signed the settlement agreement. No one signed on behalf of Ghaderi or her insurer.

During the next 15 months, the parties litigated the legal effect of the events that had taken place at the mediation. Ghaderi’s attorneys voluntarily turned over to plaintiffs’ counsel a copy of the consent form signed by Ghaderi, and did not object to a declaration by Altman concerning the events at the mediation filed in support of a motion by plaintiffs to enforce the settlement.

In her opposition to that motion, and in her own summary judgment motion, Ghaderi acknowledged having authorized the insurer to settle within the $125,000 limit, then revoking her consent only after being told that the settlement was orally agreed to by her insurer.

Bifurcated Trial

Los Angeles Superior Court Judge Richard Fruin denied Ghaderi’s motion for summary judgment, allowed the plaintiffs to amend their complaint to state a cause of action for breach of oral agreement, and bifurcated the trial to hear that claim first.

Ghaderi filed a trial brief, in which she objected to the admission of any evidence relating to the mediation, and argued for the first time that “[a]ny attempt to introduce evidence of discussions, purported agreements, or any form of communication at mediation or thereafter” was barred by the mediation confidentiality provisions of the Evidence Code.

Following a bench trial, however, Fruin entered judgment in favor of the plaintiffs in the amount of $125,000, reasoning that Ghaderi had given her attorneys, her authorized agents, authority to communicate a $125,000 offer to plaintiffs, and the offer had been accepted prior to any withdrawal of consent.

On appeal, Ghaderi argued that her revocation of consent was sufficient to prevent the settlement from becoming effective, and that no evidence of the events occurring at the mediation was admissible due to the principles of mediation confidentiality.

A divided panel of the Court of Appeal affirmed, saying Ghaderi was estopped to argue mediation confidentiality, since she had presented evidence of the mediation proceedings herself and had not objected to the plaintiffs’ evidence.

But Justice Ming Chin, writing yesterday for the court, said that neither estoppel nor implied waiver is an exception to mediation confidentiality because any such exception must be authorized by the statutory scheme commencing at Evidence Code Sec. 1115.

Under those provisions, Chin explained, exceptions to confidentiality are “narrowly delineated.”

He cited Sec. 1122, which says that a settlement agreement or other written document prepared as part of the proceedings, may be disclosed only if “[a]ll persons...who participate in the mediation expressly agreed in writing, or orally in accordance with Section 1118, to disclosure.”

Sec. 1118 permits disclosure of an oral settlement if the agreement is recorded, all parties agree in the presence of the mediator that the agreement shall be binding, and the agreement is reduced to writing and signed by the parties within 72 hours.

Chin also noted that under Sec. 1123, a written agreement entered into during mediation may be disclosed only if the parties expressly agree or the document is used to show fraud, duress, or illegality.

The current statutes, Chin added, were adopted in 1997 on the recommendation of the California Law Revision Commission. Both the unambiguous statutory language and the commission comments, he wrote, show that the Legislature did not intend to permit “judicially created exceptions” to confidentiality.

“[B]y creating fixed procedures that allow only certain evidence produced at mediation to be admitted in later civil proceedings, the Legislature was undeniably aware that some agreements made during mediation would not be enforceable,” Chin wrote. “The statutes thus reflect a policy judgment made by the Legislature when weighing the value of confidentiality. Creating exceptions to admit evidence that does not meet statutory requirements would run contrary to legislative intent.”

The case was argued in the Supreme Court by Shirley M. Hufstedler of Morrison & Foerster for Gharderi, who was backed by the Southern California Mediation Association and California Dispute Resolution Council as amici, and by Martin R. Berman of the Law Office of James Aaron Pflaster for the plaintiffs.

The case is Simmons v. Ghaderi, 08 S.O.S. 4283.

Divorce Mediation and the Brinkley-Cook trial

I hate to sound like a broken record, but as a divorce mediator, it's hard to figure out why divorce mediation isn't the option everyone chooses in a divorce! Here's an informative article from newsday.com about divorce mediation and the unfortunate fact that New York remains one of the worst places to get divorced.

The article is "New York State lags in using divorce mediation" reported and written by MICHAEL ROTHFELD and staff writer MELANIE LEFKOWITZ. July 14, 2008

Isn't there a better way?

The salacious and rage-fueled divorce trial of Christie Brinkley and Peter Cook may have made for good gossip, but experts say it is also a perfect example of everything divorce shouldn't be: expensive, public, bruising and adversarial.

Aside from the cameras and commentary, experts say the Brinkley-Cook trial, which ended last week after the parties settled out of court, is emblematic of divorce in New York, which lags behind dozens of states when it comes to offering alternatives to knock-down, drag-out courtroom battles.

From custody to mediation to financial issues, experts say the way New York State handles divorces makes the process far worse for both parties.

Andrew Schepard, a Hofstra University law professor who specializes in issues surrounding divorce, said New York's method of handling custody, for instance, is among the most adversarial in the country.

"It puts a premium on digging up dirt on the other party," Schepard said. "It puts a premium on each side saying, 'I am better than the other parent.' That is how parents 'win' custody. What they should be saying is, 'What are my children's needs during this divorce?'"

In the area of mediation, New York lags behind most states. Judges in the state do not have the power to order couples into mediation, which can reduce costs, create less divisive outcomes and help spouses maintain better relationships with their children and each other.

Programs not available to all

Courtroom alternatives, such as early-settlement panels and giving extra attention to high-conflict custody cases, are available only to couples who live in counties with pilot projects. Statewide, the state's Office of Alternative Dispute Resolution has an annual budget of $5 million in a court system that spends $2.4 billion a year.

But though change is not happening as quickly as many advocates would like, it is happening.

For the past two years, Nassau County has offered a program called "Children Come First," in which couples whose divorces are identified as acrimonious are evaluated and referred to services such as counseling and parent education. If they can't settle their differences with the increased oversight, a trial to resolve child custody disputes is held within 30 to 45 days.

Suffolk County recently began offering voluntary mediation, in which spouses are referred to approved mediators.

"It gives the parties the total control over the proceedings, because they can then decide and guide the whole proceeding through the neutral mediator," said Suffolk Administrative Judge H. Patrick Leis III. "Litigation is definitely a difficult way to do it, because afterwards one is a winner and one is a loser."

Judged a success

Nassau State Supreme Court Justice Robert Ross, supervising judge of the county's matrimonial center, said 147 couples have gone through the pilot model court since its inception in October 2006, and 80 percent of those cases settled within four months - compared with the one to three years that such contentious cases typically take. In her 2007 State of the Judiciary speech, New York State Chief Judge Judith Kaye called Nassau's program an "unqualified success."

Focusing on custody disputes at the outset, rather than settling them at the end of a yearslong process, keeps angry spouses from using children as weapons in their negotiations, Ross said. Once the custody issues are settled, he said, financial matters often fall quickly into place.

"And that's leading to settlements at an unbelievable rate," he said. "What you're doing for children now who don't have to be exposed to the acrimony of a divorce that's pending for two years, it's a blessing."

Robert Mangi, a divorce lawyer who chairs the Nassau County Bar Association's matrimonial committee and has represented litigants in the new model court, said that his clients appreciate separating issues involving the well-being of their children from appraisals of a house or a business.

Trying to avoid a 'circus'

"Ultimately what we're trying to do is to avoid the circus that you see in the Brinkley case," Mangi said. "If we can avoid a trial where all those issues have to come out, that's a good thing."

But despite some strides, many experts and divorce reform advocates find that change has been spotty, incremental and slow. In more than a dozen other states, couples are required to try mediation before seeing a judge. In New York, only a handful of counties offer court-sponsored mediation, and even then it is optional.

Leis said some lawyers mistrust mediation because of past encounters with untrained or unprofessional mediators, who are not licensed or regulated. To counter this, he said, Suffolk judges refer couples to a list of approved mediators who have been trained by the state Office of Court Administration.

"It's like trying to turn a battleship," he acknowledged.

Lisa Hicks Yackel, executive director of the New York State Dispute Resolution Association in Albany, said her group has been advocating unsuccessfully for five years for state legislation that would require couples with custody disputes just to hear about mediation. Some lawmakers are opposed because women's advocates fear wives would get steamrollered.

Schepard said he views the Brinkley divorce trial as a lost opportunity.

"It would have been absolutely wonderful for the judge to be able to order these people to mediation or parent education," he said. "Think of the message that would have sent to the public, instead of all the salacious details."

New alternatives

Some local alternatives offered by state courts for divorcing families:

'CHILDREN COME FIRST'

A 2-year-old pilot program in Nassau County that speeds up custody decisions in highly contested cases. Couples meet with a parenting coordinator, who recommends services such as parenting education or anger management to encourage settlement. Spouses who can't settle have an expedited custody trial within 45 days. About 80 percent of the 147 families who came through the program have settled.

VOLUNTARY MEDIATION

Recent Suffolk County initiative in which couples, when appropriate, are referred to a list of court-trained mediators to help them try to work out their differences outside the courtroom.

COLLABORATIVE LAW

A Collaborative Family Law Center, in which divorcing couples and their lawyers work together to reach a settlement with as little conflict as possible, is under construction in Manhattan.

Blocking reform

Experts say divorce reform has failed in New York State because of these three factors:

Opposition from the National Organization for Women, which says its goal is to protect women who may be at a financial disadvantage in the divorce process.

Opposition from conservative religious groups such as the New York State Catholic Conference, the lobbying arm of the Catholic Church.

The lack of an organized constituency in favor of divorce reform.

"Surrendering to Mediation"-Jarndyce v. Jarndyce

I have pasted below the full text of a short and sweet article from the The Orlando Sentinel about how and why mediation works and why you might want to give it a try. But first, I'd like to provide an excerpt about the Charles Dickens' novel, The Bleak House, which is referenced in the Sentinel article, to give you the appropriate context for the Sentinel article.

From David Perdue's Charles Dickens page on The Bleak House: 'Dickens' ninth novel, illustrated by Phiz, was intended to illustrate the evils caused by long, drawn-out suits in the Courts of Chancery. Dickens had observed the inner workings of the courts as a reporter in his youth and observed that "The one great principle of the English law is to make business for itself". Bleak House is often considered Dickens' finest work although not his most popular.'

Mini Plot from David Perdue: 'The case of Jarndyce and Jarndyce, in the High Court of Chancery, has been going on for a long time. The current Jarndyce, John, owner of Bleak House, has little hope of gaining anything from it. On her aunt's death Esther Summerson is adopted by Jarndyce and becomes companions to his wards, Ada Clare and Richard Carstone. Carstone has hopes that the chancery case will make his fortune.'

'As the story unfolds it is revealed that Esther is the illegitimate daughter of Captain Hawdon and Lady Dedlock. When the Dedlock's lawyer, Tulkinghorn learns of this, and tries to profit by the information, he is murdered by Lady Dedlock's former maid. Lady Dedlock flees and later dies at the gates of the cemetery where Hawdon lies buried.'

'John Jarndyce has fallen in love with Esther and asked her to marry him. She consents out of respect for Jarndyce but during the engagement she falls in love with Allan Woodcourt. When Jarndyce learns of her feelings for Allan he releases her from the engagement and she marries Woodcourt. The chancery case comes to a close with court costs eating up all of the estate. Carstone, who has married Ada, dies in despair.'

Now that you have this elaborate context, here is the Sentinel article:

When to surrender to mediationAdrian G. Uribarri Sentinel Staff Writer
July 14, 2008
A contested inheritance sparked the surreally drawn-out case in Charles Dickens' Bleak House. By the time Jarndyce and Jarndyce was over -- generations after it began -- legal costs had devoured nearly the whole estate.

Dickens wrote the novel as a critique of the British judicial system, whence the United States inherited much of its law. More than 155 years later, much remains familiar about the old Dickensian dispute.

But today, there is at least one way to avoid the horrors of Jarndyce and Jarndyce: mediation.

The process involves a neutral party, usually an attorney, hired by you or your lawyers to steer negotiations with the other side. It's confidential and binding, and though it's not always successful, it usually works in less time and with lower costs than going to court.

"I probably settle 90 percent or more of my cases in mediation," says Richard West, a marital and family lawyer and mediator in Orlando. "Without this, the court system would be hopelessly bogged down."

West says that in mediation, parties in dispute can fashion their own solutions to problems rather than rest their fates in the hands of a judge. In Orange and Seminole counties, West says, divorcing couples can't even set a hearing without trying mediation first.

"If it doesn't work," West said, "you end up in front of a judge anyway."
Adrian G. Uribarri can be reached at auribarri@orlandosentinel.com or 407-420-6269.

Resolving Workplace Conflicts through Mediation

The San Francisco Chronicle ran an informative and timely piece this Sunday on the benefits of mediation to resolve conflicts in the workplace. This is timely given the difficult economy we are facing and a resulting lack of job security for most of us which might prevent employees from speaking out about conflicts that affect their work.

Here's an excerpt: "So what are employees supposed to do when they have problems with their supervisors but are scared of the potential repercussions of complaining about their bosses and don't want to see an attorney? One answer is mediation, a process that lets individuals resolve their problems with the help of a third-party facilitator. Unlike arbitration ... mediation relies on a wide range of techniques to identify and fix problems. These can include face-to-face dispute resolution sessions, exercises to overcome interpersonal conflicts and even novel techniques to get people behaving in new ways.

"If this sounds too "out there" for the real world, Schear points out that companies such as Coca-Cola have implemented an internal alternative dispute resolution program, and employers such as Home Depot are talking about creating similar programs ... Mediators can provide a way to handle these kinds of disputes fairly."

For the full article click here.