| By utilizing some form of collaborative law in family law | | | | manner. I use the term good faith because I have |
| matters, the parties maintain control over the | | | | found that in a family law situation, one party generally |
| outcome. After all, a settlement can only be reached | | | | tends to be more aggressive than the other. I have |
| by agreement among the parties. If the parties are | | | | also noticed that the more aggressive party tends to |
| unable to reach an agreement on each and every | | | | be the one pushing the idea of mediation and that the |
| issue at some point, they will then be forced to litigate | | | | parties participate in mediation without legal counsel. It |
| the unresolved issues in court. | | | | is important to note that a mediator cannot represent |
| Mediation has been used by the Los Angeles Superior | | | | the interests of any particular party. In fact, the |
| Court as a means of resolving child custody disputes | | | | mediator's job is to assist in resolving the legal |
| since its inception in 1955. If the parties are involved in | | | | dispute. If the parties are not represented by |
| a custody dispute, mediation is required. In fact, a court | | | | separate counsel and one party is more aggressive in |
| will not make orders related to custody unless the | | | | the mediation, he/she may be able to put into effect a |
| parties have attempted to resolve their custody | | | | mediation settlement that is unfair to the other party |
| dispute through mediation. Court employees trained in | | | | through intimidation or just by "steam rolling over" the |
| resolving such disputes work with the parents in an | | | | weaker party. Unfortunately, once the agreement is |
| effort to reach a custody agreement. This form of | | | | signed, it is almost impossible to set aside. While such |
| mediation is known as Conciliation Court. Attorneys | | | | a case may be resolved through mediation, if the |
| are not permitted to participate in this process and the | | | | agreement is unfair to the weaker party, I am not sure |
| "mediators" advise the parties that they have the | | | | that I would consider the mediation to have been a |
| opportunity to reject any agreement entered into within | | | | success. |
| 10 days or the morning before the Court hearing, | | | | Often times, the parties participate in mediation without |
| whichever occurs first. What the "mediators" and | | | | legal counsel, but the mediator recommends that each |
| many attorneys fail to explain to the parties is that if | | | | party go over agreements reached with separate |
| they timely reject the Conciliation Court Agreement, | | | | counsel before signing the agreements. While in |
| the judge will often inquire as to the reasons for the | | | | theory this is a means of protecting the weaker party, |
| rejection of that agreement. Unless the rejection is | | | | the problem is that both parties are aware of the |
| based upon a significant incident that occurred since | | | | agreement that each was willing to make. If material |
| entering into the agreement, many judges will make a | | | | changes are requested after consulting with attorneys, |
| custody order that basically reinstates the terms of the | | | | it is often difficult or impossible to make those changes |
| original agreement, regardless of the rejection. | | | | because of the terms that were preliminarily agreed to |
| Many of the Los Angeles County courthouses utilize | | | | by the parties, as mentioned above. |
| attorney mediators for the family law matters. Family | | | | As a result, I believe that the "safest" form of |
| law attorneys are asked to volunteer their time at a | | | | mediation is where each party is represented by |
| particular courthouse and are sent cases which the | | | | counsel throughout the process. Obviously, this is |
| judge or commissioner believes are appropriate for | | | | often not the case. I do not mean to convey that |
| mediation. As an example, I must point out that there | | | | mediation cannot be effective unless each party is |
| are three family law courtrooms in the Van Nuys | | | | represented by counsel. However, the parties should |
| Courthouse, and that there are typically at least 20 | | | | exercise caution when mediating without separate |
| matters set for hearing in each of those courtrooms | | | | counsel because of the risks involved. |
| on any given morning. However, it is rare for more | | | | If used effectively, a mediated resolution allows the |
| than a three to five cases to be sent down to | | | | parties to heal much sooner from their emotional |
| mediation at any given day. The reason that so few | | | | wounds caused by the dissolution of their relationship. |
| cases are sent to the mediator is that the judges and | | | | Mediation also enables the parties to delve into the |
| commissioners do not believe that every case is | | | | underlying reasons they desire certain results and |
| appropriate for mediation. | | | | thereby allows for more creative resolutions that might |
| I have been volunteering as an attorney mediator on a | | | | accomplish those needs through means that are more |
| rotating basis at the Van Nuys Courthouse since | | | | palatable to the other party. However, it is a |
| January of 2008. I have found that program to be a | | | | misconception that mediation is always a less costly |
| very effective means with which to resolve such legal | | | | form of dispute resolution. It certainly has its benefits, if |
| disputes. To date, I have settled a significant | | | | used effectively. However, if the primary reason for |
| percentage of the matters that I have mediated as a | | | | utilizing mediation is cost savings, the parties may not |
| volunteer for the Van Nuys Family Law Court. | | | | be using it effectively. |
| Those matters have involved custody/visitation | | | | Although I mentioned that I have successfully mediated |
| disputes, spousal and/or child support issues, and | | | | matters in short time frames, it must be noted that |
| requests for contribution toward attorney's fees. I | | | | those resolutions were merely on issues set for |
| have found mediating family matters so personally | | | | hearing on a particular date and not on each and |
| rewarding that in or about May of 2008, I completed a | | | | every issue involved in the case. Furthermore, the |
| 40-hour training in mediation skills. | | | | parties had spent time and money briefing those |
| I tend to agree with those judges and commissioners | | | | issues for the hearing and I was able to review and |
| that hold that mediation is not appropriate for every | | | | analyze the tile and the both sides' positions before |
| case. The parties and/or their attorneys must have a | | | | commencing the mediation. |
| good faith desire to resolve their disputes in such a | | | | © 2009 Mark B. Baer, Esq. |