Some Advantages of private mediation

There has been a dramatic increase in the number of self-represented family law litigants in recent years. The self-represented party is often stuck trying to operate in a system structured to resolve disputes in which parties are represented by attorneys who understand and are familiar with the law and procedural rules, and who zealously represent their own client’s interests.

Many parties’ pleas for understanding and wise decisions that take into account their unique circumstances go unheard at the courthouse because the party failed to file the proper papers, or didn’t prepare them properly. Facts are overlooked because the evidence brought to court turns out not to be admissible “evidence” the judge can consider. Other parties do not understand how to present the facts to the judge, or don’t realize that the judge is limited to taking into consideration only a narrow range of facts that are deemed legally significant.

Oftentimes, a judicial officer who has only a limited amount of time to consider the facts makes custody and visitation rulings that leave neither party satisfied. Since all that matters is what the judge thinks, some parties are tempted to lie, exaggerate, or distort the truth, and there is very little opportunity for the judge to get to know the parties.

The growing field of private family law mediation provides opportunities for those seeking speedy, private, and comprehensive alternatives to court litigation. Private mediation allows the parties to choose a mediator with whom both parties are comfortable, and to include therapists and financial planning experts if necessary to arrive at solutions that work for the unique circumstances of each family. Private mediators are primarily peacemakers and educators, typically with an expertise in family law or child psychology.

Private mediation both allows and requires the parties to agree on the ultimate resolution of custody and visitation issues, and generally gives them more flexibility in designing solutions that fit their circumstances. Unless everyone agrees otherwise, the entire mediation is private and confidential, which often allows the parties to admit their needs, fears, and express concerns in a safe environment.

A well-trained, experienced mediator can often assist the parties in finding healing, healthy solutions. Mediators act as peacemakers and educators, while court attorneys are litigators who have an ethical duty to zealously represent their client’s interests, sometimes at the cost of overall fairness.

The needs of the parties determines the timing and content of the mediation - not the needs of the court system. The parties are encouraged to work towards solutions that will last and meet the needs of all concerned, rather than out-maneuver or manipulate each other or a judge.

Mediation can take place in a single session, or can take place over several sessions between which the parties explore options, locate documents or other records, and even obtain therapy or consult with financial, legal, or child development experts.

Because mediators are not regulated in California, it is crucial that the parties choose a mediator with advanced training in divorce and family law mediation, and with experience in family law matters. When deciding whether to hire a mediator, it is important to quiz them carefully as to education, training, and experience.

Mark Warfel has advanced training in family law mediation and years of experience as a family law attorney, educator, and coach.