What is Family Law Mediation?

Mediation is facilitated negotiation. That means that a neutral person (the mediator) helps the parties negotiate the terms of their settlement. The mediator does not make decisions. The parties make the decisions. The mediator assists the parties in reaching an agreement. That assistance may include an explanation of the laws related to family disputes, suggesting options for settlement, and helping the parties to overcome the obstacles preventing them from reaching an agreement. The mediator will also assist the parties in drafting a written document that memorializes their agreement.

Is there a difference between mediation and arbitration?

Yes. In mediation, the neutral mediator facilitates the parties' negotiations and assists them in reaching an agreement on the various issues in their case. The mediator explains the law and makes no decisions. The mediator offers no legal advice. The mediator explains the law and assists the parties in reaching an agreement.

In arbitration, the arbitrator listens to each party's version of the facts and each party's argument as to how those facts lead to a legal conclusion. The arbitrator then makes a decision for the parties on their disputed issues. Some arbitrations are binding. That means that the decision of the arbitrator controls the outcome. Other arbitrations are nonbinding or advisory. That means the arbitrator's decision can be accepted by the parties as the final conclusion or the parties can elect to continue adjudicating their dispute in a court of law.

If agree to mediate. can later decide to stop the mediation process?

Yes. Mediation is voluntary. Either party can end the mediation at any time.

Do I need a lawyer to mediate?

Parties to a family law dispute can mediate with or without a lawyer. However, it is preferable to have a lawyer assist in mediation. It is also the best practice to have a lawyer review the final agreement that results from a mediation.

Can I bring my lawyer to mediation?

Yes. However, the parties should agree in advance whether lawyers will attend the mediation sessions.

Who pays the cost of the mediation?

It is up to the parties who pay the cost of mediation. Part of any agreement to mediate should include an agreement as to each party's responsibility to pay the fees of the mediator.

How long does mediation last?

There is no specific length of time that a mediation session should last. It is generally advisable to reserve at least one-half day (approximately four hours) for a mediation session.

Some mediations take place over the course of several days. In some cases there are so many issues that the parties cannot possibly hope to resolve all of the issues in one day of mediation. Often, the parties need additional time to consult with experts or attorneys, or to review documents. Sometimes the issues being resolved in mediation are emotional, and the parties need time to think about the issues that they are discussing and come up with solutions. It is always best to enter mediation with the understanding that, while the goal is to solve all the problems in one session, the parties will return for further mediation sessions if needed.

What qualities should I look for in a good family law mediator?

In our opinion a good divorce mediator should:

1. Have experience as a family law litigator. In this way, the mediator can use his or her practical experience in divorce litigation to suggest creative alternatives for the parties to help resolve difficult issues.

2. The mediator should be well versed in California Family Law. Many mediators today are not attorneys and even more if they are attorneys never practiced in the area that you are seeking their assistance in for mediation. Lawyers in California can even be designated as Certified Specialists in a variety of legal disciplines. Look for a mediator who is an attorney and who has practiced family law exclusively. This gives you the degree of assurance that the mediator has the level of knowledge to act as your Family Law Mediator.

3. The mediator should have training in mediation. While It is true that anyone can be a mediator, it is not true that everyone should be a mediator. Mediators should know the art and science of mediation. That knowledge can be gained through training and experience. Look for a mediator who has had training in mediation techniques.

How do I get started?

If you would like to use the services of our office for mediation, both parties should call to set the appointment Let us know that you would like to retain our services to assist in mediating your family law matter. We will set up an initial appointment for you to get started.

Can we make decisions without a mediator?

Yes. In fact, it is often helpful to begin your mediation with a list of agreements that you and the other party have already reached. This can narrow the contested issues and shorten the mediation.

Who prepares the paperwork?

If you have attorneys who are assisting you, the attorneys will prepare the documents. If you are working without an attorney, then the mediator will prepare those documents for your approval and to be submitted to the court.

What does mediation cost?

Some mediators charge a flat fee and filing costs. The mediators charge for their time on an hourly basis. Some charge per the hour. Some charge administration fees. My firm charges by the hour at a fee less than the litigation fees and we charge reduced administration fees.

~ OCBA Family Law Meeting, March 2018 (with revisions/additions)