What is mediation?
Mediation is the process of having a neutral third party (the mediator) help guide parties toward a resolution of their dispute. The mediator cannot force either party to agree, but the mediator can help them find a mutually satisfying agreement.
Disputes in any situation are stressful. The prospect of having to pay legal expenses to resolve the dispute makes it even more stressful, particularly when the costs of going to court outweigh the potential gain. Mediation commonly is a tool used to settle disputes such as custody and visitation. Even if you do proceed to court, the court will send you to mediation to try to resolve the custody and visitation issues.
If your divorce involves child custody; will it benefit your children to fight over custody and court hearings? No, because it affects your children-and you want to try to keep your children from being emotionally upset. The mediator is not limited by the formal rules of court and can talk with both parents together or separately, to find an agreement that works for your unique situation. Mediation also benefits probate and trust cases-do you want your extended family divided at trial or at court hearings, etc.? Or would it benefit your family to meet in a calm, neutral setting to try to settle the matter peacefully? Furthermore, California courts are overwhelmed and underfunded-getting a hearing on some matters can take months or years. Mediation can be much more efficient than a court trial.
Why pay a professional mediator?
The reason some mediators charge nearly as much as attorneys is because they are trained and/or experienced, and know how to guide parties to a resolution. Despite the mediator cost, if you resolve the problem outside of court, you will save money. Consider that the filing fee for most petitions in San Bernardino County is almost $500-and that does not include the cost of the attorney preparing the paperwork, or appearing at the hearing on the petition…it is just to file the documents with the court.
What kinds of cases can you mediate?
Most cases can be resolved with mediation, with exceptions such as divorce cases where there is domestic violence, or when one party has already repeatedly failed to follow through with a contract or court order. In these cases, you may be better off seeking legal remedies rather than a mediated agreement.
What are your qualifications as a mediator?
I was trained in law school and I am DRPA (Dispute Resolution Programs Act) certified. I have been mediating legal disputes since 2011, and I have mediated disputes including divorce issues, car accident liability, landlord-tenant issues, and contract liability. I am an attorney licensed to practice (and currently practicing) in the state of California, but when I am hired as a mediator, I am not acting as an attorney-and vice-versa.
If the mediation is unsuccessful, then what do we do?
If the mediation is unsuccessful after the first round, second round, or third round, don’t give up. Sometimes it takes time for people to work through their anger to find a reasonable solution, even when the solution may have been obvious from the beginning. When you feel like you have mediated enough, you are free to walk away. No one can force you to participate in mediation. You may need to seek legal advice if mediation is unsuccessful. You still have the options you had prior to mediation. However, it is important to note that if mediation is unsuccessful, I cannot represent any party to the dispute as an attorney, because I may have gained confidences of one or both sides. What happens in mediation is confidential, and I am not allowed as a mediator or an attorney to take advantage of confidential information gained during mediation.
Mediation and Confidentiality:
Under the California Evidence Code, all communications during a mediation session are confidential (see California Evidence Code § 1117 et seq). Even if your mediation is unsuccessful, the other party cannot use what you say during mediation at a subsequent legal proceeding-and neither can the mediator. This is intended to encourage parties to try to find a resolution. However, the confidentiality does not extend to a written mediation agreement resulting from successful mediation.
If the mediation is successful, then what do we do?
That’s easy-the agreement is written or typed, and signed by all parties. The parties then abide by the agreement just like any other contract. If one party does not abide by the agreement, the other can seek legal enforcement just like any other contract.