Mediation Archives

What Mediators Wish Lawyers Knew

by Shawn Weber, JD, CLS-F* | Oct 30, 2025 | Professional Practice & Training

Lawyers and mediators may work in the same neighborhood, but let’s be honest, we don’t always speak the same language. I say that as someone who’s been on both sides of the table. Some of my best friends are lawyers. Heck, I am one. Still, after years in the trenches, I’ve noticed we often talk past each other.

A good lawyer knows how to spot risk and protect the client while pushing for an edge without crossing the line. That balance takes judgment and a clear head. A good mediator is different. The mediator stays steady in the storm and helps people find a way out of the mess. These are two very different jobs. When lawyers show up to mediation expecting a courtroom battle, or mediators expect lawyers to just drop their advocacy hats, nobody wins. Everyone leaves annoyed.

I really want to improve mediation for lawyers (and for me and my clients). So, here’s my wish list of things I wish every lawyer knew about mediation and their role in it.

Let’s clear up a big myth right out of the gate: mediation isn’t just negotiation with a new name tag.

Mediation for lawyers isn’t just another round of hardball bargaining. It’s a process that takes people from venting and drama to facts and understanding, and (if we’re lucky) to a real solution. If you treat it like a street fight, you’ll miss the whole point.

Most clients show up to mediation because they’re worn out from fighting. They want a place to be heard and to keep their dignity intact. If a lawyer storms in ready for battle, that safe space disappears in a flash. Sure, the client might feel good for a minute having a gladiator in their corner, but the fallout can last for years.

Good lawyers know how to read the room. The mediator’s office is not a courtroom. It is closer to a hospital. Everyone is already bleeding, at least a little.

We are not your opponent—and we are not the judge.

Mediators are neutral. Our job is not to trick, trap, or favor anyone. We do not make rulings, decide who is right, or hand out victories.

So, you don’t need to argue your case like you’re in front of a judge. I don’t need your closing argument or a play-by-play on how you’ll crush the other side. And please, spare me the rant about how terrible the other lawyer or client is. None of that gets us any closer to peace.

In mediation, the only story that counts is the one that helps both people see a way forward. Once lawyers realize the mediator isn’t their rival or the judge, everyone relaxes and breathes easier. The work starts to move.

If I push back, it’s not because I’m taking sides. I’m just stress-testing the deal. I want to make sure your client can live with it six months down the road, when the dust settles.

Preparation also deserves attention: it is an act of kindness.

Mediation is only as good as the prep work behind it. I’ve seen lawyers walk into the first session with no clue about the numbers, no idea what their client can or can’t handle emotionally, and no plan except, “Let’s wing it.” That’s not advocacy. That’s just making it up as you go. Frankly, it’s unethical, incompetent representation.

When working with mediators, I wish more lawyers would help clients figure out what really matters before their session. Not just, “How much do you want?” but, “What are you willing to give up, put up with, or let go of to get some peace?” When you know those answers, your client’s voice is much more credible.

You don’t need to present a multi-volume treatise on why your client is awesome. You need clarity. A client who knows what they want is a client with real power.

Mediation for lawyers is not always about winning.

Law school teaches us to win at all costs. Mediation flips that idea on its head. Winning here means helping people turn the page and find peace they can live with.

That doesn’t mean you stop being an advocate. It just means you do it differently. Instead of trying to win over a judge, you help your client get to yes with a good business decision.

I’ve seen some truly great lawyers who just get this. They use their influence to calm things down, not stir the pot. They know when to step in and when to let the client take the lead. Those are the lawyers clients remember with gratitude, not resentment.

When working with mediators, please help your client own the agreement.

When the ink dries on a settlement, the client should feel like it’s their deal instead of something their lawyer or the mediator pushed them into.

If you’re advising from the sidelines, try being a guide, not a gatekeeper. Ask questions. Challenge assumptions. But don’t rewrite the whole deal. Clients need to stand on their own two feet by the end of their mediation.

One of the best compliments I can give a lawyer is, “Your client stayed empowered.” If I can say that, you nailed it.

Your presence matters more than your words.

Mediation rooms are emotional minefields. Clients notice every sigh, every eye roll, every sideways glance. If you look impatient, dismissive, or bored, they’ll take it as a sign you disapprove. That can wipe out hours of progress in seconds.

When lawyers bring calm and professionalism into the room, it changes everything. You don’t have to say much, and you certainly don’t need to give a big speech. Sometimes, just sitting back with quiet confidence helps the client relax. The best mediations end with a deep breath and a quiet nod.

The best lawyers make the mediator’s job easier.

I have a lot of respect for lawyers who get that mediation is a team sport. They know when to talk, when to listen, and when to let silence do the heavy lifting. They help the process instead of trying to run the show.

These lawyers know their credibility is their best asset. When they talk, people listen—because they’re solid, informed, and decent.

If you’re that kind of lawyer, mediators love working with you. You make it possible for us to do our jobs. More importantly, you help families move forward in peace instead of bitterness.

The bottom line

Mediation depends on good lawyers working with mediators. When they understand the process, everything runs smoother. They bring structure, stability, and a sense that the work is going somewhere real.

Mediators long for you to shift your role from fighter to builder. We value your advocacy. Just aim it at lasting peace.

To me, that’s what real mastery looks like.

Ready to bring more peace into your work?

Learn to master conflict with Shawn Weber in our career changing 40-Hour Divorce Mediation Training.

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Early intervention: Why mediation early in a family law case can save a fortune in fees and stress.

by Shawn Weber, JD, CLS-F* | Dec 21, 2023 | Uncategorized

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.

"Need

Consider a mediated Settlement Conference with Weber Dispute Resolution. Call us at 858-410-0144 or click the button to learn more.

Early intervention: Why mediation early in a family law case can save a fortune in fees and stress.

by Shawn Weber, JD, CLS-F* | Dec 21, 2023 | Uncategorized

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.

"Need

Consider a mediated Settlement Conference with Weber Dispute Resolution. Call us at 858-410-0144 or click the button to learn more.

Embracing the Virtual Space: Lessons learned from Zoom Mediation in a Post-Pandemic World

by Shawn Weber, JD, CLS-F* | May 30, 2023 | Uncategorized

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.

Read also:

California Online Mediation

Understanding the Confidentiality of the Mediation Process in California Law

Top Five Principles for Successful Family Law Conflict Managers

Understanding the Confidentiality of the Mediation Process in California Law

by Shawn Weber, JD, CLS-F* | May 19, 2023 | Uncategorized

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.
California Evidence Code Section 1119

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.

(California Evidence Code Section 1120.)

Benefits of Confidentiality

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.

Further Reading:

Early Intervention: Why Mediation Early in a Family Law Case Can Save Money and Stress

Neutral Private Settlement Conference