As a certified family law specialist (CLS-F)[i], I have been involved in divorce mediation and alternate dispute resolution (ADR) for more than 15 years. I regularly serve as a pro tem settlement judge on the Mandatory Settlement Conference (MSC) Panel with the San Diego County Superior Court. While I enjoy helping folks through their MSCs, the help is simply too little too late for many people. Often preparation for the MSC is nearly as stressful and costly as preparing for the trial. In addition, lawyers need to certify that discovery is complete and prepare elaborate briefs. Waiting until the very end of a case to attempt mediation does the parties and the professionals a great disservice. I see this in the pained and stressed-out expressions on parties and counsel at the MSCs I facilitate.
There are many options at the beginning of the case to settle issues, manage discovery concerns and resolve unnecessary conflict. Even (and especially) high conflict cases can benefit from earlier intervention with a mediator to short circuit the conflict. Attorneys benefit from early mediation because it helps them settle the cases that can settle. That frees them up to focus on trials for cases that won’t settle.
Here are some ideas for how you can engage the ADR services of a mediator early in your family law case:
Meet and Confer on Steroids.
Every family law attorney is aware of the requirement for the “meet and confer” conference. Too often it’s simply given lip service by a short phone call to opposing counsel without discussing the issues. Because lawyers sometimes give less attention to what needs to happen to settle, the case stalls. Why not have a facilitated meet and confer settlement conference to identify the issues and formulate a plan for a swift conclusion?
Discovery Management.
Often the most expensive part of a case is the discovery, which involves elaborate and arcane procedures to gather as much evidence as possible. Sometimes this is whether the case needs the information or not. The adversarial process spurs less and not more cooperation in discovery. This can lead to months or even years of discovery wars. Why not use a mediator to help “referee” the discovery? Most discovery can be provided informally with much less cost. A mediator can help facilitate the discovery process to specifically target discovery needs and conclude the case with much less rancor and headache for the lawyers and cost to the parties.
Managing the High Conflict Case.
There is a common misconception that people cannot mediate high conflict cases. That’s simply not true. Most high conflict behavior in divorce cases is based on fear and hurt. So, engaging a good mediator early in the process reduces conflict by managing the fight-or-flight response. Court tends to exacerbate and actually encourage high conflict pathologies. Rather than encouraging discord with a fight at court, consider short-circuiting conflict with a mediator experienced in high conflict. Consequently, if parties learn early how to interact productively, it makes the rest of the case go more smoothly.
Use Early Mediation to Resolve Interim Issues.
The terribly backlogged Family Courts sometimes take months to hear even the most routine (and sometimes pressing) interim motions. I can usually help as a mediator to resolve interim questions like support and custody in a fraction of the time and cost compared to filing a Request for Order. Because a mediated settlement conference efficiently resolves interim issues, the parties can relax a little more and focus on concluding the case rather than reacting to interim problems.
Consider a Court-Ordered Family Resolution Plan and Use of ADR Pursuant to Family Code Section 2451.
One little-known provision of the Family Code involves the use of Alternate Dispute Resolution (ADR) as part of a court-ordered family centered case resolution plan as described in Family Code section 2451. California Rule of Court 5.83 describes how the plan can be implemented. Parties can appoint a case manager as part of the plan and can also apply Code of Civil Procedure section 639 to appoint the case manager as a discovery referee. Further, Family Code section 2451(a)(3) gives protection to attorneys who follow any discovery plans adopted as part of a court-ordered family resolution plan as follows:
“Limitations on discovery, including temporary suspension pending exploration of settlement. There is a rebuttable presumption that an attorney who carries out discovery as provided in a family centered case resolution plan has fulfilled his or her duty of care to the client as to the existence of community property.”
I have used this procedure to great effect. It can do a lot to reduce costs and keep the case moving quickly towards settlement.
Let Us Move Your Case Past Stuck.
Because there are many ADR options beyond an end-of-case settlement conference where a mediator can make a huge difference, the key is to start early. At Weber Dispute Resolution, we have the training, skills, and experience to get your family law case past stuck. That’s because our approach serves to support existing relationships with legal counsel and will not waste family wealth by exacerbating family conflict. Experience first-hand the difference a dolphin lawyer can make.
[i] Certified Specialist – Family Law, The State Bar of California Board of Legal Specialization.
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Consider a mediated Settlement Conference with Weber Dispute Resolution. Call us at 858-410-0144 or click the button to learn more.
In the wake of the Covid-19 pandemic, the practice of mediation has undergone a significant transformation.
The necessity to maintain physical distance prompted mediators to adapt and explore alternative means of facilitating dispute resolution. Video conferencing platforms, with Zoom at the forefront, emerged as a crucial tool for mediators worldwide. What started as a temporary solution has now become an integral part of their practice. In this blog post, we will delve into the knowledge and insights gained by mediators as they navigated the world of Zoom mediation, providing a glimpse into how virtual spaces have become the new norm for the mediation profession.
Overcoming Geographical Barriers
One of the most evident advantages of Zoom mediation is the ability to transcend geographical boundaries. Suddenly geography became less relevant. Mediators quickly realized that they could connect with parties and legal representatives located in different cities, states, or even countries, without the need for costly travel arrangements. Mediators with local markets could suddenly go statewide, national or even international immediately. This newfound accessibility expands the mediator’s reach and enhances convenience for all participants. This, in turn, makes mediation a more viable and efficient option.
Flexibility and Convenience
Zoom mediation has brought newfound flexibility and convenience to the mediation process. Parties and their representatives can engage in the mediation from the comfort of their own offices or homes, eliminating the need for extensive travel and potential disruptions to their schedules. This flexibility also allows for greater scheduling options, accommodating parties in different time zones or those with busy calendars, ultimately expediting the resolution of disputes.
Cost Savings
By eliminating travel and accommodation expenses associated with traditional face-to-face mediations, Zoom has proven to be a cost-effective alternative. Mediators have witnessed significant reductions in overhead costs, such as renting physical spaces for mediation conferences. Many mediators completely gave up their physical brick-and-mortar locations in favor of going completely virtual. This financial advantage translates into more affordable mediation services. As a result, doors open for parties who may have otherwise been deterred by the potential financial burden.
Enhanced Preparation and Documentation
Zoom mediation has facilitated improved preparation and documentation processes for mediators. With the availability of screen sharing and document sharing features, parties can easily present and exchange relevant documents in real-time. Mediators can also leverage digital tools to annotate, highlight, and organize documents, ensuring a more streamlined and efficient mediation process.
Maintaining Neutrality and Confidentiality
Mediators hold neutrality and confidentiality as essential pillars of the mediation process. Initially, concerns were raised about the ability to preserve these principles in a virtual setting. However, mediators have adapted by implementing various measures to address these concerns. Using breakout rooms for private discussions, implementing robust security features, and emphasizing confidentiality agreements have become standard practice, ensuring that the virtual space remains as secure and trustworthy as the physical environment.
Technological Proficiency and Backup Plans
The adoption of Zoom mediation required mediators to enhance their technological proficiency. Mediators quickly learned the importance of familiarizing themselves with the features and functionalities of the platform for smooth meeting facilitation. Additionally, they recognized the need for backup plans, such as alternative communication channels or switching to audio-only mode in case of connectivity issues. These preparations have become integral to providing uninterrupted and effective mediation.
Adaptation of Mediation Techniques
The transition to Zoom mediation prompted mediators to adapt and modify their mediation techniques. Effective virtual mediation requires employing active listening skills, establishing clear communication protocols, and managing the dynamics of online interactions. Mediators have also embraced the use of visual aids, virtual whiteboards, and chat features to enhance communication and engagement.
Benefits of Physical Distance in High Conflict Cases
One surprising yet significant discovery for many mediators is the positive impact on physical distance and remoteness in high conflict cases. Zoom mediations create a space for clients without the heightened emotional triggers that can arise in the same physical space. The virtual environment allows participants to feel comfortable and in control, reducing the potential for confrontations and encouraging more productive dialogue.
Non-Verbal Cues through Webcams
Mediators have had to find innovative ways to capture and interpret non-verbal cues that are crucial in understanding participants’ emotions and reactions. Although limited by the virtual medium, mediators have discovered techniques to read body language through webcams. They pay attention to facial expressions, hand movements, vocal expression and changes in posture to gauge participants’ responses. Additionally, they encourage participants to use non-verbal cues, such as nodding or using hand gestures, to enhance communication and understanding.
Conclusion
The widespread adoption and implementation of Zoom mediation during the Covid-19 pandemic has revolutionized the field of mediation. Mediators have embraced the benefits of virtual platforms, including overcoming geographical barriers, increasing convenience and flexibility, and reducing costs. They have honed their technological proficiency, adapted mediation techniques, and found ways to navigate challenges such as preserving neutrality and capturing non-verbal cues. As the pandemic recedes, Zoom and other video conferencing platforms are likely to remain a valuable tool in the mediator’s toolkit, offering an efficient and effective means of resolving disputes in a rapidly changing world.
In California, mediation is a popular alternative to traditional courtroom proceedings for resolving conflicts, including divorce cases. One crucial aspect of the mediation process is confidentiality. Maintaining confidentiality ensures parties can freely express their concerns, explore options, and work towards mutually agreed solutions. In this blog post, we will delve into the details of confidentiality in the mediation process under California law.
Confidentiality in Mediation
Confidentiality is a basic principle for the mediation process in California. California Evidence Code sections 703.5 and 1115–1128 outline the rules and protections regarding confidentiality in mediation. These laws aim to foster an open and honest environment where parties can work things out without fear of their statements being used against them later in court.
Confidential Communications
Pursuant to the California laws on mediation confidentiality, communications made pursuant to mediation are confidential. This means that parties, mediators, and any other parties cannot be forced to share what was said during mediation in court. This rule extends to both the content of the communications and any documents prepared specifically for mediation.
California Evidence Code section 1119 provides in particular:
(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.
Exceptions to California Mediation Confidentiality
While mediation is generally confidential, there are a few exceptions where information shared during mediation may be admissible in court. These exceptions include situations involving threats of harm or criminal acts, child abuse, and certain financial crimes. Additionally, if all parties –including the mediator– agree in writing, they can waive the confidentiality. (See California Evidence Code Section 1122.)
Evidence Code Section 1120 specifically spells out the following circumstances when the confidentiality does not apply:
Evidence otherwise admissible in court or subject to discovery is not excluded simply because it was brought up during mediation.
An agreement to mediate is admissible.
An agreement not to take a default or an agreement to extend time is not confidential.
The mere fact a particular mediator is serving on a case is not confidential.
The family law declarations of disclosure required in every divorce case by Family Code sections Sections 2104 and 2105 are admissible, even if the parties prepared them during mediation.
Confidentiality in California mediation processes offers several benefits to the parties involved:
Open Communication: Confidentiality encourages open and honest communication between the parties. It allows them to express their concerns, feelings, and interests without fear of their words being used against them later.
Privacy: Mediation provides a private and confidential setting to discuss sensitive information without becoming public record. This confidentiality protects personal and financial matters from unnecessary exposure.
Preserving Relationships: Confidentiality allows parties to work collaboratively towards resolving their issues. By safeguarding private information, it helps maintain trust and respect, increasing the likelihood of preserving relationships, especially in family law cases.
Creative Problem-Solving: Parties can freely explore various options and potential solutions during mediation, knowing that their ideas and proposals will remain confidential. This freedom fosters creativity and facilitates a more comprehensive resolution of the dispute.
Conclusion
Confidentiality is a crucial aspect of the mediation process under California law. It creates a safe space for open communication, protects privacy, and supports the development of mutually agreed solutions. It’s important for all involved parties to understand the rules and exceptions regarding confidentiality in mediation. By ensuring confidentiality, mediation provides a valuable alternative to traditional litigation, promoting better results for those seeking resolution in California’s legal system.
If you’re interested in using mediation to divorce but your spouse is not willing, there are some things you can do to convince your spouse to mediate. Here are seven tips to help you convince your spouse to do mediation:
1. Discuss the benefits of mediation.
Before you attempt to convince your spouse to mediate, it’s important to be clear on the benefits of mediation. Emphasize how mediation can save both of you time, money, and emotional stress compared to going to court. Explain how the process allows both parties to have more control over the outcome and can lead to a more amicable resolution. A good approach is to communicate your desire to honor what was good about your relationship as you transition out of the marriage. Hiring a mediator is a good way to part with mutual respect rather than with anger and hurt.
2. Address your spouse’s concerns.
If your spouse doesn’t want to participate in mediation, convincing them to mediate requires you to address their concerns. First, listen to their reasons for resistance and acknowledge their feelings. Then, explain how mediation can help them address these concerns and work through any issues that arise during the process.
3. Choose a divorce mediator who aligns with your spouse’s goals.
Because a divorce mediator must be neutral, it’s important to find one who aligns with your spouse’s goals and yours. It’s hard to convince your ex to mediate if she doesn’t feel good about the mediator. Ask potential mediators about their approach and style and then choose one who will work well with your spouse.
4. Involve your spouse in the mediator selection process.
It’s important to involve your spouse in the choice of a mediator. If your spouse feels like they have some control over the process, they may be more willing to participate. Show them a list of potential mediators and ask for input about who would work best for them. At this point, you may not need to covince your spouse to mediate because they will have convinced themselves!
5. Hire a divorce coach to help with how to convince your spouse to mediate.
If your spouse still resists to the idea of mediation, consider hiring a divorce coach to help you enroll them. A coach can help you strategize how to present mediation to your spouse in a way that resonates with them, address any concerns they may have, and help you communicate more effectively with them. By enlisting the help of a coach, you may, as a result, be able to overcome obstacles preventing your spouse from participating in mediation.
6. Find success stories.
Research and share stories of successful mediations with your spouse. Perhaps you have mutual friends who were successful with their own divorce mediation. This can help alleviate fears or doubts they may have about the process and show them that mediation can be a positive experience.
7. Seek therapy or counseling.
If your spouse is still resistant to mediation, it may be helpful to seek therapy or counseling together. A therapist can help you both work through emotional blocks keeping your spouse from participating in mediation. Additionally, a therapist can help you both communicate better, which can ultimately lead to a more successful mediation process. As such, therapists can be terrific allies when convincing your ex to mediate.
Conclusion: Convincing your spouse to mediate may not always be an easy process, but it’s worth the effort.
Convincing your spouse to mediate may not always be an easy process. However, it’s worth the effort if you want to avoid a long and ugly court battle. By using these seven tips, you can help your spouse understand the benefits of mediation, address their concerns, involve them in the selection process, and even hire a divorce coach or seek therapy to enroll them in the process. Remember, mediation can save you time, money, and emotional stress, and it can lead to a more amicable resolution that both parties can feel good about. With the right approach and resources, you can successfully convince your spouse to participate in mediation. This will help you move forward with your divorce in a positive and helpful way.
When it comes to settling a conflict through the mediation process, you want to make sure every word you use is meaningful and purposeful. However, for those who are not familiar with the world of mediation, there are some words which can have a catastrophic effect on settlement possibilities. In this blog post we will take an in depth look at six “toxic” words commonly seen during Mediation proceedings so both clients and lawyers alike can avoid any potential mishaps along the way.
The power of words during mediation and why it’s important to watch what you say
Mediation can be a powerful force in resolving conflicts, but it also requires some finesse to get through. One of the most important things to consider when in a mediating situation is the power of words. What you say could serve as the foundation for an agreement, or hold enough weight to derail any progress made thus far. It’s essential to be aware of both the literal and figurative meanings of the words used during mediation because they can have a significant influence on how the case concludes. Thoughtful discourse and respectful communication are paramount to facilitate a successful negotiation. Basically, make sure your words don’t end up doing more harm than good!
First Word – “Never” – Why this word can cause an impasse in a settlement
The word “never” when used in settlement negotiations is a surefire way to put an immediate stop to discussions. No matter what scenario or context, it is totally unproductive and it communicates a complete unwillingness to compromise. In fact, throwing the word out there during mediation could be viewed as a declaration of war. By immediately setting an adversarial tone, “never” will do little more than send both parties back to square one.
Yes, sometimes negotiations require a firm stance. But, stepping away from the table with hardline terms like “never” achieves nothing. Let’s try leaving such inflammatory language at the door and work together for a positive outcome.
Second Word – “Can’t” – Why this simple word can shut down negotiation progress
“Can’t” is a deceptively powerful word! We often think of it as a harmless negation – an easy refusal, or a way to retreat from an uncomfortable situation. In the context of settling a case through mediation, however, “can’t” carries a nasty burden. By simply saying “I can’t”, a party can give an impression they are unwilling to go any further in negotiation. Such a conclusion could easily be the death knell for any chance of resolution.
In contrast, choose phrases to build toward mutually beneficial negotiations, Phrases such as “let me investigate that further” or “let me discuss this with my team” communicates a person may not be thrilled with a proposal, but leaves open the possibility of progress. Remember – when it comes to mediation, “can’t” can cost you!
Third Word – “Contingency” – How using conditions hinders success
When mediating, it’s important to keep an open mind and avoid placing conditions on the desired outcome. The word “contingency” is especially discouraged for this reason. Even if two parties theoretically agree during mediation, introducing expectations or contingencies can break any already formed agreement. After all, in an ideal world the goal of a negotiation would be to come to one clear compromise, not several small ones all attached with individual strings! Ensuring there is no hidden agenda or “if-then” policies will guarantee that everyone is on an even playing field and working towards one common goal – settling a case.
Fourth Word – “Fair” – Why “Fair” is the F-word.
When it comes to mediation, “fair” is the F-word because all too often, both parties focus only on what is fair for them instead of looking for solutions. This idea of fairness is subjective and can create roadblocks in reaching agreements that benefit everyone.
Instead of focusing on “fair”, turn to negotiation skills and compromise. This will take you much further than the debate about who deserves what. Aiming for a good business decision you can live will take you much farther than focusing on what is or is not fair. After all, when two parties work together to create an outcome that is good for both sides, everybody wins.
Fifth Word – “Fault” – assigning blame is a recipe for disengagement
The fifth word to avoid in attempted case resolution through mediation is “fault”. In the quest for peace and agreement between parties, pointing the finger will earn little progress. All too often, attempts at assigning blame only serve to destroy the chances of each side getting what they want in a peaceful manner. It’s important for successful negotiation to keep blame out of the equation. It’s a recipe for disengagement that won’t yield good results!
Sixth Word – “Should” – Why the tyranny of the “shoulds” can destroy progress
When it comes to settling a case during mediation, the word “should” is often like an uninvited party crasher – it can derail progress and throw a wrench into negotiations. By putting expectations on the other person or making one side feel their choice is wrong, the guilt of a “should” can create tension and damage any idea of compromise. Committing to the tyranny of shoulds can render both parties unable to move beyond limited thinking and prevents creative solutions. As such, it’s wise counsel to avoid “should” while mediating; unless, of course, you like adding fuel to an already tense situation!
The Six Toxic Words to Destroy Your Negotiation
Never
Can’t
Contingency
Fair
Fault
Should
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Remember, there is no such thing as impasse in mediation! When you are stuck, it doesn’t mean you storm away from the table and declare a failure. It just means you and your mediation team haven’t found the right proposal yet.
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Here’s a great little cheat sheet you can use during negotiations to become a pro at negotiating. Follow the tips on this sheet and make specific and plausible proposals based on rational evaluation rather than emotions.
As the ability for parties to reach a settlement often lies in the hands of what is said, the six toxic words explored in this post are ones that should be watched out for if you want to stay on track during a mediation. Although finding the right combination of words is challenging, avoiding these six particular words will help ensure successful negotiations during mediation and a positive outcome.
Know any other toxic words?
These aren’t the only toxic words which can ruin a mediation. Which ones can you identify? Share your toxic words and phrases in the comments!
