What Is Mediation?
Mediation is a method in which parties negotiate resolutions of family law problems by working with a trained neutral professional, usually a lawyer, known as a mediator. Mediation takes place entirely out of court and without litigation. In many mediations parties meet directly with the mediator in a three-person setting without attorneys present. In other mediations the parties are each represented by counsel, and the parties and counsel all meet together with the mediator. The task of the mediator is to help the parties (and attorneys, if they participate) identify issues and goals, develop information, create options for resolution, and find mutually-acceptable agreement.
Key Features of Mediation
Mediation is a serious, good-faith effort to find productive, useful solutions to family law issues. While disagreements and differing viewpoints are expected, hostility, attack, belligerence, and bad faith are unacceptable.
Parties choose mediation only if they want it. No one can compel a party to participate in mediation.
Under California State law every statement made or document used in mediation is completely confidential. Nothing a party says or does in mediation can be used in any legal proceeding. The purpose of confidentiality is to have parties feel free to say what they want without fear of seeing their statements later used against them.
Open and Transparent
Parties produce all information and documents voluntarily. Nothing is concealed or withheld.
Successful mediation requires each party to participate actively and fully in the negotiations. Each party must be able to identify and assert her or his interests firmly and clearly.
The parties are the decision-makers. The Mediator does not decide the issues. The Mediator does not put pressure on either one or both parties to accept a given outcome. By entering mediation the parties are choosing to control the terms of settlement. The parties are deciding not to give over that control to a judge or other third-party decision-maker.
How Mediation Works At Tobriner Mediation
The Roadmap for Mediation:
Goal and Interest-Based Approach
Tobriner Mediation mostly uses a goal-based and interest-based approach, sometimes called “facilitative” mediation.
Initial Meeting With Michael
The parties have an initial meeting with Michael to discuss the mediation process. The parties and Michael then sign a Mediation Agreement. Often at this meeting Michael asks the parties to describe their long-term goals, both financial, personal, and, if there are children, for their children. The parties also identify the specific, concrete issues they will need to resolve.
As the mediation continues, the parties, with Michael’s participation, assemble the information and documents they will need in order to address the issues.
Developing Options (“Brainstorming”)
When the information and documents are assembled and the issues clarified, Michael guides the parties through the process of developing options for resolution, often referred to as the “brainstorming” process. Brainstorming helps the parties find creative, productive solutions to the problems at hand.
Once a range of options is developed, Michael assists the parties in deciding which options best meet the parties’ goals and interests. The parties then reach agreement through good-faith bargaining, again with Michael’s assistance. Michael then prepares a written draft of the parties’ agreement.
Before the parties sign a written agreement, Michael asks parties who are mediating without counsel to consult with separate, independent attorneys, referred to as “consulting counsel”. The role of consulting counsel is to review the draft agreement with her or his client, to make sure that the client understands the agreement and is satisfied with it, and to raise any questions that may have been overlooked.
Role of the Mediator
As Mediator, Michael does the following;
- Helps the parties describe their long-term goals
- Works with the parties to put together information and documents
- Assists the parties in selecting neutral experts, such as real property appraisers, business valuation specialists, and retirement plan experts
- Helps the parties identify issues and interests
- Guides the parties through the brainstorming process
- Facilitates the parties’ negotiation of an agreement
- Prepares the parties’ written settlement contract
- Assists the parties in navigating the legal system
- Ensures that the negotiating environment is respectful and amicable
- Ensures that both parties express their interests and participate fully in the mediation
- Provides legal background and analysis
In the evaluative approach to mediation the Mediator’s primary task is to analyze the strengths and weaknesses of each party’s legal case. The Mediator then explains to each party (and to counsel if they participate) her or his chances of success in court. Based on this analysis, and using compromise as a fundamental tool, the Mediator then seeks to assist the parties in reaching a realistic settlement.
If parties and counsel choose to mediate using the evaluative approach, Tobriner Mediation provides that service. Often, the goal-based, facilitative approach and the evaluative approach are combined and used together in a single mediation.
In co-mediation two mediators, one an attorney and one a mental health professional, work together with the parties using the mediation methodologies described above. The attorney co-mediator deals primarily with the financial and legal issues, and the mental health professional co-mediator assists with the personal, emotional, and parenting issues. Often, these functions overlap, so that both co-mediators work both on the financial and legal issues and on the personal, emotional, and parenting issues. Both co-mediators usually attend meetings with clients in a four-way setting, but sometimes it’s useful to have just one co-mediator attend (for example, on parenting questions only the mental health professional may attend).
Co-mediation offers significant advantages. By bringing to bear both financial and legal, together with mental health, expertise and perspectives, co-mediation enhances settlement prospects. In particular, co-mediation improves the chances for a workable, durable settlement that is good for both parties.
Tobriner Mediation offers co-mediation as one choice of mediation formats. Michael has had experience working as a co-mediator with several highly qualified mental health professional co-mediators.