Mediation is a process in which a neutral person or persons facilitate communication between the parties of a legal case to assist them in reaching a mutually acceptable agreement. According to California Rules of Court § 3.853, “A mediator must conduct the mediation in a manner that supports the principles of voluntary participation and self-determination by the parties. For this purpose a mediator must:
(1) Inform the parties, at or before the outset of the first mediation session, that any resolution of the dispute in mediation requires a voluntary agreement of the parties;
(2) Respect the right of each participant to decide the extent of his or her participation in the mediation, including the right to withdraw from the mediation at any time; and
(3) Refrain from coercing any party to make a decision or to continue to participate in the mediation.”
So, if Mediation is voluntary and the other person could withdraw at any time, why should you consider participating?
There are several pros, and a few cons, of the Mediation process, discussed in detail below:
(1) Mediation can be less expensive. The parties both pay for the mediator instead of each party paying for an attorney. Attorneys who conduct mediation typically charge a set hourly rate whether they represent an individual or acts as a neutral third party. Therefore, if both parties are paying for one attorney’s time, it’s considerably less than each party paying for their own attorney, especially if you are the higher earner. For higher earners, this is extremely important to keep in mind as you could be ordered to pay both your and the other party’s attorney fees.
(2) Information can be easily shared between the parties, and documents required by the Court by both parties can be quickly duplicated. For instance, in divorce cases, the Court requires the completion and exchange of documents referred to as Preliminary Declarations of Disclosure, which detail each of the parties’ assets, debts, income, and expenses. If both parties provide all of the documents, the Disclosures can be more quickly prepared and exchanged. This can translate to less time wasted waiting on forms and lower legal fees.
(3) Parties are far less likely to appear in court, saving time, and most importantly, expensive attorney’s fees. The bulk of a Client’s attorney’s fees are related to Court appearances. In addition to the time spent inside the courtroom, many attorneys charge for travel time and the time spent waiting for your case to be called. For clients in Los Angeles, travel time can take several hours and be very costly, depending on the location of the attorney’s office and the Court. In Mediation, there are no court appearances, only meetings with the Mediator and their staff to resolve issues and prepare the documents needed to complete your matter.
(4) Mediation promotes informal open discussion between the parties to resolve the issues on their terms and at their pace. Rather than terms dictated by a Judge who doesn’t know the parties or their family’s needs, and is restricted by codes and case law. Instead of a Judge, the Mediator acts as a neutral party and provides both parties with information on the current law to help parties reach an informed decision. With the parties in greater control, they can create specific solutions that reflect the needs of their family. However, the Mediator cannot give either party legal advice.
(5) Mediation is voluntary. Both parties choose the Mediator so they are not stuck with a Judge who may have a particular bias. Also, neither party is obligated to the suggestions of the Mediator, so if you want your day in Court, you can end the Mediation process at any time. It is also important to note that in the event one party ends the Mediation process, it does not prevent you from resolving the case via settlement at any time, even if you are represented by attorneys and preparing for Trial.
There are some limitations and possible drawbacks to using Mediation to resolve your family law dispute. I do not recommend parties use Mediation in instances where one party has been abusive to the other in the past, is aggressive or controlling. It is also not helpful in cases where one party is hiding information or documents from the other, because the Mediator can only ask for the information, they cannot conduct formal discovery to determine what is hidden. Finally, there is no guarantee your case will resolve through Mediation. In such circumstances, you may end up hiring separate attorneys and taking your case to Court for Trial, as the Mediator is unable to represent either party individually.
Every family situation is different, so you have to do what works best for you. If you have a family law matter and you and the other party cannot come to an agreement on your own, contact a neutral party to assist in mediating an agreement or, of course, seek legal advice. Several attorneys with The Reape-Rickett Law Firm facilitate Family Law Mediation, myself included. Please contact our office if you are interested in utilizing Mediation Services to resolve your family law matter.