Mediation Basics

Mediation is an informal process in which the participants, and not a judge or arbitrator, ultimately determine the outcome.

Know your mediator. The neutral mediator plays an important role in any mediation, and must disclose any prior dealings or relationships of any type with the parties or their attorneys. One should always ask the mediator about any dealings with the attorneys and parties.

Know the Participants. The mediator should ask everyone present to identify him or herself and explain why they are there. This may include principals, attorneys, witnesses, insurance adjustors, those providing moral or other support. Anyone other than the disputants and their attorneys will be excused, with witnesses subject to recall if needed.

The name, address, and contact information for each person should be obtained by the mediator.

The mediation process.

Mediation is an informal process, not a court hearing. The contents of case files, mediators notes, statements made during the mediation, and all documents and communications relating to the mediation are confidential, pursuant to sections 1115 - 1128 of the California Evidence Code.

The role of the mediator is to set the tone, facilitate direct communication, help define the issues, clarify expectations, explore feelings and help the parties to define their needs and develop alternatives for resolution of the dispute. The mediator does not decide the outcome, place blame, or determine liability.

Witnesses and other professionals will be excused after the opening statement and participate only as agreed by the parties.

Caucus. The mediator or the parties may determine that a separate interview or caucus is necessary or helpful - that is, the one party and his or her attorney meet separately with the mediator, outside the hearing of the other party and attorney. Matters discussed in caucus may be held confidentially, or shared, depending on the desires of the party.

Attorneys. Although parties may have an attorney, they are not required to do so. Attorneys are present to advise their clients, not to conduct discovery. A party may ask for a recess in the mediation at any time to discuss something with his or her attorney. The parties may also write down an agreement and wait to sign the agreement until his or her own attorney has seen it.

Voluntary Process. Mediation is a voluntary process. The mediator has no power to enforce any agreements or impose any decision upon the parties. Many consider mediation to be primarily a good faith negotiation whereby the parties agree to disclose fully any and all facts or information pertinent to the dispute.

Agreements. An agreement reached at mediation is binding if both parties are of legal age, they understand what they have agreed to, and neither party was forced to agree. The language in the mediation agreement should specify that the mediation is enforceable, and that the agreement itself is not confidential. Without the proper language in the agreement, both sides are on the honor system with regard to carrying out the agreement.

Initial Statements. Where appropriate, the mediator will advise each participant that they may make an opening statement. Neither party shall interrupt the other's opening statement.

Other Ground Rules. The mediator should make known at the outset any and all ground rules for the mediation.

Abraham Lincoln got it right when it comes to lawyers

In my opinion, Abraham Lincoln got it right 150 years ago:

"Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser -- in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough."

-- Abraham Lincoln

Lincoln, Notes for a Law Lecture, Abraham Lincoln Online, Speeches and Writings (1850), Source: The Collected Works of Abraham Lincoln, Vol. 2, Basler, ed.

same old same old from attorney, my client a pleasant surprise

A few days after we filed and served the four motions to compel discovery, the attorney who had in open court promised responses two weeks ago faxed a letter to me.

In the letter, the attorney stated that I had not conferred with the attorney about the failure to respond - apparently forgetting the discussion at the court in front of the judge. Then the attorney threatened to file a motion requesting sanctions against me for filing the motion requesting answers to discovery prior to the quasi-criminal contempt trial.

The letter also demands that I take the motions off calendar immediately based on the promise to get the discovery responses to me in two weeks.

So, then, I ask myself, what would the ethical and reasonable attorney do in response to such a letter?

Should I tell the attorney that a separate motion would not be necessary - the judge can issue sanctions against me while hearing my own motions if I have behaved badly in filing the motions. While file a motion when you can bring the matter up in your opposition papers? Will it save my client time and money responding to yet another separate motion if I just help the opposition out by explaining how to properly raise the issue?

Should I remind the attorney again that we did discuss the discovery in front of the judge while on the record? Will this cause the attorney to realize that opposing the motions is fruitless, resulting in a stipulation that the opposing party will pay my legal fees incurred (about $1,600 so far on these motions) and timely discovery responses, without having to go to court and argue the motion?

Should I inform the attorney of the appellate decisions stating that there is no need to meet and confer where discovery is overdue - that is, there's nothing to confer about. Will this cause the attorney to "give up" opposing the motions, convince the client to pay the fees incurred, and give me complete discovery responses?

In the end, I decide to write a letter merely stating that the letter is factually and legally inaccurate, and reminding the attorney that I have already offered to take the motions off calendar if I receive timely responses and a payment of fees incurred to date on the motions. In effect, I draft a letter that I think the judge or any attorney familiar with the discovery process will understand, but if the attorney truly is ignorant and can't recall discussing the matter, the attorney will miss. In a way, I am testing the good faith of the attorney.

This is causing my client's attorney's fees to skyrocket, and one might think my client would be upset (the client is very upset) and that the client would stop cooperating with the other parent wherever possible.

I am so proud of my client! Since filing the contempt, the client has bent over backwards to accommodate the other parent - when the other parent went on vacation and couldn't show up at the designated place and time for visitation, my client allowed the other party to pick up the child the next day without so much as a peep of complaint. It would have been easy to insist that I file a contempt motion, at least obtain a police report (remember, my client is supposed to go to the police station for the visitation exchange) showing the client was not there to pick up the child. Must have been a superhuman effort to avoid even complaining about it.

Seeing the wonderful good faith of my client, the ability to place the needs of the child ahead of the emotional needs to strike back at the other party, I am proud to be an attorney, and proud to be representing such a person.

It makes me proud to be able to shield my client from some of the irrational and unreasonable behavior of the other party and that party's attorney.

can't teach an old dog new tricks

Remember the attorney who supposedly wants to get things moving for a custody evaluation but then files a contempt bringing the whole process to a stop?

After the contempt was filed my office served by mail four sets of discovery - requests for admissions, form interrogatories (General), special interrogatories, and requests for the production of documents.

Last time I was in court while my client was pleading not guilty to the contempt, I specifically requested that the court delay the arraignment so that discovery responses could first be reviewed. The attorney stated in open court that the discovery responses would be out the following day - now two weeks ago.

No responses were received, so we had to file four motions to compel and/or deem matters admitted. The earliest day I could get into court is also the date the trial on the contempt is scheduled. Chances are, the trial will be continued, further dragging the whole process out - because opposing counsel refuses to cooperate with discovery.

This is especially stupid for opposing counsel to do since I already have filed a motion requesting sanctions based, in part, on the fact that all of my offers of settlement, compromise, easier ways to do things, etc. have been ignored - not turned down, just completely ignored. So, while that motion is on calendar, what does the attorney do with regard to my discovery requests - ignore them, forcing me to file another motion requesting sanctions.

The question is, why would the client put up with this?

Incredible lawyer overcomes schizophrenia

Yesterday I came across this tremendous article about an attorney and professor who suffers from schizophrenia.

How one can concentrate while hearing voices, seeing ashtrays dance, and thinking that aliens are invading is beyond me. That a person who is experiencing all of these distractions can do research, give presentations on the illness, be a law professor, and a myriad of other more important things, such as be a good spouse, is amazing.

Surely if the law professor can deal with talking and dancing ashtrays, I can deal with a few rude attorneys and emotionally driven clients.

What will they think of next?

Last post, I told you how I had to attend a hearing the following day for my client's arraignment.

Well, I get there and the opposing counsel shows up 1/2 hour late. So we're waiting for our case to get called and the attorney finally shows up and wants to talk in the hallway. Opposing counsel asks me if my client will agree to a "solution focused" custody evaluation by a court-appointed expert. Mind you, the parties have already agreed on custody and there is no motion to modify custody on calendar. Attorney says that client wants 50-50 custody and this will speed things up.

I am completely flabbergasted. I don't know whether to laugh or cry, so I play it straight. I mention to counsel that the last time our clients were waiting to talk to the mediator for conciliation court, attorney filed a contempt against my client, bringing the whole process to a screeching halt until the contempt has been resolved. If attorney is in such a hurry, perhaps should have let the process run its course prior to filing the contempt. Attorney says "we will just have to let the judge decide." I tell attorney that I am not sure the judge will think 50-50 custody is such a good idea after hearing all the relevant evidence. Just them, the bailiff sticks his head out in the hallway and calls for us to come to court, as the judge is ready to hear our case.

As we are walking, I tell the other lawyer that if the contempt is dropped, I will inquire whether my client is agreeable to a custody evaluation. Opposing attorney says "No way." While I don't respond, my blood pressure goes up and I suspect that the judge's first indication that we're on our way is either the steam coming out of my ears or the bright red glow from my flushed face, as I think, "another settlement opportunity flushed down the drain."

We hustle into the courtroom and I find that I am out of breath and my heart is pumping so hard my red blood cells are beginning to feel dizzy from circulating through my body, even though we have walked no more than 20 yards. I state my name but the judge can't hear me. I try again, still not loud enough. I ask the judge for a minute so I can catch my breath. After a few seconds, the sound of my beating heart diminishes and I try again. This time, the judge can hear me.

Now the judge wants to arraign my client. When it is my turn to speak again, I request that the judge continue the arraignment on the grounds that the contempt citation is ambiguous and I have discovery outstanding to attempt to clarify it. The judge agrees it is ambiguous and says judge is not sure whether or not judge can arraign my client. Judge asks the other lawyer how many counts of contempt are being alleged. Other lawyer says "one." The judge asks on what date the alleged contempt occurred, and attorney gives a date certain.

I can't believe my client's good luck, since we have a writing specifically agreeing in advance to the events that took place on the date in question, and several other dates were mentioned in the citation. Even better, the writing is signed, I believe, by the other lawyer. One can hardly be in contempt of an order when both parties have agreed to deviate from the order in a signed writing - I think to myself.

Still, I am wary that the other two potential counts may somehow spring back to life if I don't nail this down. I again mention the discovery. Opposing counsel states I will have the responses the following day. Of course, as of this posting, they have not yet arrived.

I contemplate whether I should now file a motion to compel, and a motion to deem my requested admissions "admitted." Will this serve my client? Will the court award attorneys' fees so that my client doesn't have to pay for the motion? Will the judge think that it is me who is being overly litigious?

Next, I personally serve opposing counsel with my client's motion for attorneys' fees.

As I left the courtroom I felt good that my client was unlikely to be convicted of contempt, was optimistic that the opposing attorney had again demonstrated unreasonableness to the judge, and was happy that my client's motion was served without having to pay a process server or the U.S. Post Office. However, I've been around long enough to see more than 800 family law cases, and rarely does everything go as you expect it to, rarely is everything what it seems to be.

When I leave the courthouse, I walk to my car, which is in the Cathedral parking garage. I duck into the chapel to say a brief prayer, thank God for the opportunity to serve my clients, and ask for grace to represent them well. I ask God's blessing on the court, both parties, and opposing counsel, then pray for my family. Five minutes later, I am on the freeway back to my office, checking my voicemail, returning phone calls, and thinking about my other clients.