Principles And Guidelines For Family Law Mediation
As Conducted By Michael C. Tobriner
To my mediation clients:
Here are the principles and guidelines I use in conducting family law mediation. We’ll discuss these points at the outset of the mediation, and we’ll refer to them as the mediation goes forward. Please review them and keep them in mind.
- This is a voluntary process. You are participating in mediation because you want to. No one can compel you to mediate. You are free to leave at any time. By entering mediation voluntarily you are strengthening the negotiating process and increasing the likelihood of a good outcome.
- Like all mediators, I am neutral. I do not represent either of you. My job is to guide you through the process.
- This is a safe environment. By law, and by the Mediation Agreement you will sign, everything that occurs in mediation is confidential. Nothing you say or do can be used in any subsequent legal proceeding. You are free to express whatever you wish without fear that what you say will come back against you.
- You are the decision-makers. I do not decide the issues. I do not put pressure on either one or both of you to accept a given outcome. With your consent, I establish, and I expect that you respect and follow, the process by which the mediation is conducted. By entering mediation you are choosing to control the result of your case. You are deciding not to give over that control to a judge or other third-party decision-maker.
- Mediation requires that each of you participate actively and fully in the negotiations. Each of you must assert his or her interests firmly and clearly.
- Mediation requires full and open disclosure. Each of you must be willing to disclose and share all information bearing on the problems you will need to resolve. Hiding information, providing only partial information, or providing misleading information will cause the mediation to fail.
- You must start the process and continue in it with an open mind. Hidden agendas will subvert the process.
- Our communications and our work take place in a three-way setting, with all three of us present in the room together. I do not communicate with either of you separately, unless we all agree in advance that such a communication would be useful.
- In order to work toward a resolution I ask each of you to describe your goals and interest. We then develop options for meeting those goals and interests.
- We often need objective standards against which to measure an option or suggested resolution. Such standards may include expectations or understandings developed during your time together, financial or economic realities, children’s needs, and other standards you may identify. Sometimes clients want to use California family law as such a standard. If so, I can give an objective opinion as to what the law would provide in a given circumstance. If we need more information about what the law would do, we can use your consulting attorneys or other legal experts to solicit an opinion. However, I will encourage you not to rely solely on the law as a standard for resolving issues.
- Compromise is an essential element of any negotiation. I will expect you to compromise when it is in your interests to do so. I will not expect you to compromise on your vital interests or in order to avoid the pressure of negotiation.
- I ask you to bring your highest and best selves to the table. We all have positive and productive parts of ourselves and other parts that are not so positive or productive. If you will make an effort to participate in the mediation from the better, not the lesser, of your thoughts and feelings, you will increase the chance of success.
- I suggest, although I do not require, that you each engage a consulting attorney. A consulting attorney can provide advice strictly from each of your respective viewpoints and can help clarify and focus your thoughts and decisions in the mediation.
- I ask that you each make a commitment not to initiate legal proceedings while the mediation is in progress.
- Emotions and feelings are part of any major life change, including ending a marriage or relationship, and expressions of those emotions and feelings, including anger and frustration, during mediation are normal and acceptable. However, threats by one person to leave the mediation unless the other person makes concessions are unacceptable. Bullying in any form is also unacceptable, as is any form of verbal abuse.