MEDIATION
What is it?
Virtually all courts now require the parties to go to mediation before the court will hear the case either for temporary orders or for a final trial on the merits. Mediation is different from arbitration. In mediation, the parties meet with a trained mediator who helps them come to an agreement on settling the issues. He does not make any final decision, it is up to the parties. Arbitration, is like having a private judge. One person (or a panel of persons) is picked to make the final decision. Each side presents their evidence and arguments in a more informal setting than in court but the arbitrator is the final word on the outcome of the case.
Why mediate?
The advantage of mediation is that the parties can control the outcome of their case. When they leave it up to the judge then it’s “winner take all” and someone wins and someone loses. In mediation the parties can work out solutions that they both can live with although they may not be entirely happy with the final result. In mediation there are no “winners” or “losers”. Mediation brings an end to the litigation and the related attorneys fees and stress. It allows parents to work out arrangements that are best for their children and more suitable to the work schedules of the parents. Last, mediation can shorten the entire legal process so that the parties don’t have to wait for trial dates or hearing dates.
Where do you get a mediator?
There are two kinds of mediators – private and public. Public mediation services are furnished in many counties through a Dispute Resolution Center that provides a mediator and a place to mediate for a nominal fee. The mediators through the DRC may not be attorneys or even if they are, they may not be knowledgeable in family law. However, they are trained in mediation and are often successful in helping the parties come to an agreement.
Private mediators are family law attorneys or retired judges who charge a flat fee per party to host a half-day or full-day mediation. Prices vary according to the mediator. George Clifton, the author of this article, is a trained mediator and family law specialist who has mediated may family law cases.
When do you do you mediate?
The parties can actually mediate anytime, either before or after the case is filed. Usually, mediation takes place after the case is filed. The attorneys and their clients usually agree on a date, time and place for mediation. If it’s within their client’s budget, attorneys normally prefer a private mediator who is experienced in family law that can help the parties agree on difficult terms such as child custody and division of community property.