Thursday, January 29, 2009

Is Mediation Binding?

This is a confusing question given how mediation works. If the question is posed as: "Is an agreement reached through mediation binding?" then the answer is "Yes!"

But because the mediator is not making decisions for the parties, when someone asks the more common question: "Is mediation binding?" I have to first unravel the question in order to make sure that my answer explains that the question doesn't make sense. And when I read articles from various online sources stating that "mediation is not binding" it has a tendency to drive me crazy because that is inaccurate and misleading.

In arbitration, where an arbitrator is hired to make a decision for disputing parties, the arbitrator's decision can either be binding or nonbinding. This means that the parties in the beginning of the case decide whether the decision reached by the arbitrator (who basically sits as a judge) is going to be the final decision in the case or whether the parties will keep their right to bring the dispute to trial if they don't like the decision imposed by the arbitrator.

But mediation is different from arbitration. In mediation, the mediator is hired to help the parties reach an agreement that works for them. There is no deciding whether the agreement reached through mediation is going to be binding or nonbinding because the goal of mediation is to arrive at an agreement everyone can live with. Once the parties reach their agreement, there is an agreement and therefore an end to the dispute. The agreement reached by the parties is put in writing and signed by the parties (creating a binding contract) and is submitted to the court and turned into an order of the court (just as if the judge had made the order directly to the parties).

So, yes, an agreement reached through mediation is binding because that is the purpose of mediation. Anyone who says mediation is not binding is mistaken and most likely does not understand how mediation works.

Friday, January 02, 2009

Why Isn't Mediation More Common on TV and Movies?

Happy New Year! At a recent social event, I was engaged in a conversation with a well-educated and informed individual ("Pat") who was curious about my chosen profession as a family law mediator. Pat wanted to know more about the types of clients I work with, how people find me and how I help couples in a different way than traditional attorneys do. I explained to Pat that as a neutral mediator, I do not take sides in a dispute, but instead help couples work together in what I see as a more civilized manner than what litigation often requires.

I told Pat that the family courts require couples to "meet and confer" to try to reach informal resolution at every step along the way even in a fully contested court dispute, and that the vast majority of court cases settle before trial. I also told Pat that it made more sense to me to start couples off in a less antagonistic and more collaborative way, to start working together toward informal resolution right from the start and avoid the time, expense and stress of unnecessary litigation to get to the same point that almost all divorcing couples get to at some point which is a settlement.

My logic made much sense to Pat and Pat added that it seems couples who reach their own agreements are more likely to feel satisfied with the win-win results over the more traditional win-lose results from a court battle (although I think those results are more like lose-lose for everyone, including children who are caught in the middle of such battles!)

In asking how clients find me, (which I said is through referrals from past clients and also from attorneys and from the Internet). Pat was curious to know why we don't hear or see more about mediation in the media. Pat said that every divorce portrayed in television or movies includes one side battling the other side, both armed with attorneys and neither of the disputing individuals even talking to each other; Pat and I both searched our memories for divorce mediation having a starring role in such shows. I agreed that the traditional model of battling litigants is much more prevalent despite the fact that it does not make good sense on any level. The way I see it, a couple knows their own finances and their own circumstances and history and issues relating to their own children better than anyone so why would we not want this couple to communicate directly with each other? And why would we want a stranger (the judge) to make decisions about their personal lives rather than trying to assist the couple in finding their own solutions that actually work for everyone involved?

I recognize that circumstances surrounding the end of a marriage or partnership are generally not ideal, but my goal is to help couples who have decided not to stay together to still communicate with each other productively to get through the difficulty of a divorce in a more civilized manner and to maintain control over the decisions made about their own children, retirement plans, stock options, intellectual property, real estate, support and anything else that is related to each couples' situation.

All of this means that mediation is less dramatic than a court battle that takes a year or more and tens of thousands of dollars. Although drama makes for good television and movie scripts, it does not make for peaceful resolution of issues in most couples' divorces. So that is my theory as to why we don't see mediation much on TV or in movies. Any other ideas?