Yes, virtually all divorces, personal injury, business and estate disputes pass through the mediation process. To say “I want to go to mediation” is a given. Over 90% of all cases are successfully resolved in mediation. Unfortunately, sometimes cases are pushed into mediation, before they are fully prepared or over prepared. Timing is an important factor.
The current underfunding of California Courts mandates alternatives to trial such as mediation or settlement conferences. Some counties have closed their branch courts. To save costs, some Counties are consolidating most, if not all cases to the County Seat. I have seen as many as 5 judges assigned to a single courtroom, rotating through, much like surgeons sharing an operating room. Needless to say, they have very little courtroom time to conduct a trial, often times, only a few hours a day.
In order to secure the best results at mediation of matters pending in the Vista Court of San Diego County, our Carlsbad office recommends: Preparation; Selection of Mediator; Game Plan; and Memorialization. The merger of all these factors points to successful mediation.
First, determine the key issues of your case. This is virtually impossible without the assistance of effective legal counsel. In this process parties will determine the key facts that support a realistic evaluation of their case. I recently learned of a case where the parties rushed to mediation, overlooking a multi-million dollar investment account. A representation by the party in the know that “they were broke” fueled pressure to rush into mediation that favored him.
Preparation also helps reduce the emotional component, which in turn allows presentation in a civil manner, facilitating credibility, a very persuasive factor.
Mediation should not be attempted in a divorce case before preliminary declarations of disclosures are served. This is a first and critical step.
2. Selection of Mediator
It must be appreciated that mediation is the pathway to agreement. The successful mediation requires confidence by both parties, that the mediator is fair and impartial. Unfortunately, at times they are not, favoring one side over the other. At best, these mediations fail requiring yet a second mediation, or even a trial, at worst they allow an overbearing party to prevail. It is important for the attorney to reduce the risk of favoritism to achieve the goal of a reasonable settlement.
The Mediator should be knowledgeable about the field of law involved. For divorce matters they should have a history of resolving a wide variety of issues, including dividing business and other complex property. The mediator is expected to keep the parties within reasonable boundaries.
If opposition suggests a name, do not automatically reject it. First, try to determine if the mediator will be a true neutral by:
2. Past or further business prospects with the opposition (remember, mediators are usually in business).
If nothing is counter indicative of true neutrality, give the suggestion of full consideration. In North San Diego County a few of the popular dissolution mediators are: Alan Marblestone; Robin Devito; and Paul Gavin. Also, several retained Judges from the Vista Courts mediate cases for a fee.
3. Game Plan
It is important to develop a plan in mediation. This usually entails making a well-supported claim that leaves some room for flexibility. It is generally expected that “each side will bend” in the words of local Commissioner Patti Ratekin.
Our office likes to employ graphics that attract attention and reduce the reading obligation of the mediator as much as possible. In that regard, we prefer to a one page accounting sheet to a long narrative.
4. Nail it Down (memorialization)
At the end of mediation, be sure to memorialize your resolution by reducing your agreement to a writing and workout any vagueness in the terms. This is one point where your lawyer will earn his or her fees. Nothing is worse than striking an agreement and then havING the parties continue the dispute over the language of the agreement. All lawyers with any amount of experience have seen it happen. Again, preparation is the #1 way to avoid a failed mediation or confusion at the conclusion of your mediation session.
The One Mediator Disaster
When you have one mediator for both sides serving without independent counsel, you have a servant with two masters. This is a formula that favors the overbearing party. This situation should be avoided if the goal is a fair resolution.
Costs of Mediation
The San Diego Courts provide free mediation by an attorney after declaration of disclosures are exchanged. The mediators are typically assigned three cases for one afternoon. If mediation fails, trial is set in the near future, as soon as possible. Again, if a case has any complexity this situation should be avoided with a fee based mediator.
A better method is to hire an experienced attorney serving as a neutral or one of the retired judges. The retired judges are often about $400 to $600 per hour. A full day can easily consume $5,000. Retired Family Law Commissioner Alan Clements reportedly charges around $300 per hour as do many lawyers.