California law defines mediation as “a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.”
A mediator is a neutral person who conducts mediation. It includes any person designated by a mediator either to assist in the mediation or to communicate with the participants in preparation for a mediation
Mediation is mandatory when the law requires it. For example, mediation is mandatory in cases involving contested custody or visitation. (The Sacramento Office of Family Court Services provides free Family Court Counselors for mandatory child custody mediation, also referred to as Child Custody Recommending Counseling.) Mediation is also mandatory in cases involving stepparent or grandparent visitation. However, parties can still undergo mediation even if the law does not require it, in which sense it is considered voluntary.
The mediator’s main duty is to assist the parties in coming to a settlement that works for both of them. Unlike a full-blown trial, parties themselves are responsible for articulating their arguments and negotiating an agreement in mediation.
The following goals are just some of the benefits of mediation:
- Encourage communication and cooperation
- Prevent detrimental actions between parties, such as verbal attacks, blaming or punishing.
- Layout all possible options for resolving the dispute
- Design a plan that’s a good fit for the children if custody is an issue
The appropriateness of going to mediation is often decided on a case-by-case basis. Parties should only undergo mediation if they are willing to work together. The parties should at least be able to identify their motivations and needs and should have the ability to argue for themselves.
There are several advantages to mediation, such as the following:
- Parties get to decide for themselves, instead of submitting the decision to a third person.
- Parties have the option of choosing flexible arrangements that will best serve their needs
- Mediation is a more private forum to air out grievances and concerns, as it is protected by confidentiality.
- Communication between parties is improved.
- Less traumatic on the children involved.
- Mediation may result in a faster resolution of divorce.
- Cost-saving compared to other options, like litigation in family court.
Mediation also suffers from disadvantages and risks. The primary risk is that a party may get an unfair settlement. This is because, in mediation, it is the parties themselves who argue for their position. Furthermore, there is no impartial third person who grants a decision on their behalf; rather, the settlement is subject to the agreement of the parties. A timid or emotionally unprepared party may be at a disadvantage during mediation.
The parties may each hire a consulting attorney to guide them through the process. The lawyers act more as advisors in this case, rather than advocates. A consulting attorney is also referred to as “Independent legal counsel.”
The following services may be provided by a lawyer in this case:
- Reviewing the agreement to mediate
- Give the client advice on the procedure to be followed
- Assist the client in identifying the issue to be discussed
- Guide the client with regard to necessary information and documentation.
- Provide the client with a thorough understanding of the laws involved.
- Suggest solutions and strategies.
A party can choose to terminate or withdraw from voluntary mediation at any time, for any reason.