Family Law Mediation

What is Mediation?

"True" or "pure" mediation is a voluntary, confidential, cooperative process engaged in by parties for the purpose of reaching a binding agreement utilizing the assistance of a neutral party as a facilitator of the process. Although most parties who participate in mediation sessions do so alone, subject to the parties' agreement one or both parties may be accompanied, either by their attorney or a third party. Mediation is a form of Alternative Dispute Resolution (ADR), and is distinct from other forms of ADR (such as Arbitration). A hybrid of mediation and arbitration is labeled Med/Arb. California family law courts employ a process which is labeled mediation in the context of child custody and visitation cases, in an effort to facilitate creation of suitable parenting plan. Mediation by court employed Family Court Services (FCS) mediators may not be true mediation and should not be confused with true mediation.

The key differences between the court's FCS mediation process and true mediation are:

Court employed mediators have very heavy work schedules (they are buried in cases) and thus have a very limited amount of time to complete their assigned tasks. Private mediators can schedule as much time and as many sessions as is necessary to assist the parties.
Parties who participate in court ordered mediation with court employed mediators are likely to have their right to confidentiality waived, either expressly (written or verbal) or impliedly.
In cases where confidentiality has been waived, court employed mediators are tasked with making a recommendation to the court regarding any areas of a parenting plan in which the parties fail to reach a full agreement during the limited time available. Thus, they must fulfill three roles: mediator (exploring possibilities for parties to agree); fact finder (including making determinations as to credibility, contacting third parties, etc.); and arbitrator (preparing and submitting to the court and the parties a formal written recommendation regarding all parenting issues where the parties have not agreed).
The scope of the FCS mediation is specifically limited to parenting issues, while the scope of private mediation issues is as broad as the parties wish.

Many professionals believe that any form of non-confidential mediation should not be labeled mediation because of the confusion created by the misapplication of the term. It is unfortunate that the misuse of this term is employed by the court system, particularly so when the interests at stake are the welfare of children. Short of legislative or administrative reform, the only solution to the present problem is education.

Private mediation offers parties many obvious advantages over litigation, including: privacy, flexibility, promptness, cost savings, control of the outcome, and less conflict and emotional upheaval. In the divorce context, private mediation is a tool used by the parties to dissolve their marriage in a less adversarial way, and is far more efficient. The mediation process begins with an initial meeting with the mediator and the execution of a written Mediation Agreement by the parties and the mediator. The initial meeting is followed by as many sessions as the parties wish. A successful mediation concludes with the execution of a binding written agreement prepared by the mediator.

Private mediation is not appropriate in some cases. Because private mediation is voluntary, parties assume the risk that their time and money invested in the process may prove to be wasted in the event no agreement is executed. If you believe your case may be suitable for private mediation, please discuss this option with the opposing party. Note that any session between you and a prospective mediator, prior to a joint session with both parties and the mediator present, will almost certainly raise suspicion in the other party that the mediator's neutrality may have been compromised, effectively eliminating that prospective mediator from consideration.

Because of the potential benefits, particularly to the parties' children, Mr. Hughes encourages the exploration and consideration of this approach.

Mediation Agreement

Click to view a sample Mediation Agreement.

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