Mediation in Family Law-What is it?

WHAT IS MEDIATION??

A dictionary's definition is as follows:
1. to bring about an agreement, peace, etc., as an intermediary between parties.
2. to settle disputes as an intermediary between parties: reconcile.

But perhaps a working definition would be better. One published by the Santa Clara County Chapter of the American Psychology Law society in a 1980 paper is presented as follows:

"Mediation of custody and visitation conflicts involve a process of short term counseling and may be ongoing, with a specific aim of helping separated parents resolve the emotional issues which prevent them from reaching satisfactory agreements regarding their continuing relationship with their children. Recent research of Wallerstein and Kelly has confirmed a long held belief among professionals that frequent and continuing contact with two cooperating parents is in the best interests of the children of divorcing parents. Some families reach their own solutions to custody and visitation with flexibility sufficient to allow for the changing needs of the children and the parents. Others, because of their personal dynamics and/or conflicted relationships, are unable to do so without professional assistance. This assistance fosters a problem solving process, which includes techniques of negotiation, education and counseling and is supportive to all family members."

WHAT ARE THE OBJECTIVES OF MEDIATORS??

There is a consensus among mediators working with child custody problems on the overall objectives of mediation, although there is a spectrum of techniques and practices.

These objective include:

1. Protecting the child from being caught in the middle of those conflicts which cause feeling of guilt, confusion and fear;
2. Reducing parental disputes, enabling greater trust, cooperation and agreement;
3. Helping parents understand and tolerate their value differences;
4. Reaching a mutually acceptable agreement which includes a child's living arrangements and parental responsibilities.

WHAT ARE THE METHODS OF MEDIATION??

Forms of mediation with divorced or unmarried parents range from the use of advisory attorneys to individual and team mediators. Some mediators are attorneys, some are mental health professionals while others may come from the field of social work. Others trained in mediation may have a background completely different than those mentioned above. Some mediators only see parents jointly with no individual meetings allowed, others may have a set number before arbitration and others determine the number of meetings by case. Some mediators specialize in custody-visitation disputes only while others do financial mediation. Others do both with referrals for tax considerations and other use of specialized expertise. Hence, the methods of mediation cover the waterfront, but the objectives are the same, that is to help the two parties involved reach a mutual agreement that both parties can try to make work.

IS MEDIATION LEGAL??

A very definite YES, mediation is a legal means of reaching a settlement out of court, not only for family court issues, but for just about any dispute that will be handled by a civil court. Most judges will sign as a court order any agreement that was mutually agreed to by the parties involved. The reasons are simple:

1. It clears their docket and saves them time.
2. It saves them from having to listen to testimony and making a decision on the testimony presented.
3. The most important reason is the judges know that an agreed to decision by the parties involved has a greater chance of not being back in court than a decision ordered upon the two parties by the judge.

AND IF THAT LOGIC DOESN'T MAKE SENSE TO YOU, THEN MEDIATION IS PROBABLY NOT FOR YOU.

Some states, such as California, even go as far as require mediation for couples involved in a family law disputes. California Civil Code (Section 4607, Section 5, page 148), operative as of January 1, 1981, is an attempt at disentangling child custody disputes from legal and economic aspects of the process. This section of the code is commonly known as the California Mandatory Mediation Law. This law prescribes that:

"The purpose of such mediation proceeding shall be to reduce acrimony which may exist between the parties and to develop an agreement assuring the child or children's close and continuing contact with both parents after the marriage is dissolved. The mediator shall use his or her best efforts to effect a settlement of the custody or visitation dispute."

Perhaps some day other states will have the insight to adopt similar legislation, rather than continuing to promote the adversary system that currently prevails.

WHAT ARE THE BENEFITS OF MEDIATION WITH RESPECT TO CUSTODY DISPUTES??

A group of local mental health professionals, and attorneys have together affirmed "that mediation avoids unnecessary litigation, lightens the court and attorney's loads and more importantly, spares the children of unnecessary and destructive discord between their parents, facilitating the children's positive development."

The benefits of mediation to parents are:

1. A greater chance of fairness
2. Increased communications
3. Taking time to come to understandings and agreements in keeping with changing family conditions.
4. Learn to compromise where possible.
5. Learn to separate economic from ongoing parenting issues.

By reaching practical parenting agreements, parents are helped to neutralize their anger. Financially, mediation costs less than litigation while still maintaining a role for attorneys in reviewing agreements and preparation for the court's review. (1) Please see the article "The Benefits Outweigh the Costs" by Jessica Pearson and Nancy Thoennes on the financial benefits of mediation to the parties involved. The article, on the following pages, is reproduced from the Winter 1982 issue of the publication FAMILY ADVOCATE with the permission of the American Bar Association.