Mediation, to be successful, requires that the parties come to an agreement on at least some of the issues.
Of course, the fault lines in the relationship are likely to become apparent through mediation. The relationship has already been fractured, but sometimes the smaller fault lines are not obvious - until you get both people in a room trying to work out every intimate financial/emotional detail.
We are often far more emotionally tied to various financial issues than we think - or at least to what those financial issues represent for us. If it was as easy as having one person divide the cake and allowing the other to choose - you wouldn't need mediation.
There is what California law might call for (depending on how disputed facts are resolved by the court), there is what each party acting alone might think is equitable under the circumstances, and there is what BOTH parties can agree is equitable. Mediation tries to get you to the third step, and it may have little or nothing to do with the first two options.
This is why those involved in mediation must commit to the process of mediation itself, and also why mediation is a lot more work than one might first suspect - and also why those who successfully make mediation agreements are usually more satisfied than those who force the court to make all of the decisions.
Successful Mediation Requires Desire to Move Forward
One thing have I learned -
Mediation requires that
we heal ourselves first
Mediation, then,
cannot succeed as "combat
with disguised fury"
To be successful
in resolving our disputes
requires that we love
We must love ourselves
enough to love the others
that we dispute with
Capish? You get it?
If we hate an enemy
we can't mediate
So before you do -
look first within, to find out
if you embrace love
Anger is not hate
Disappointment is not hate
Love is not hate
Mediation requires that
we heal ourselves first
Mediation, then,
cannot succeed as "combat
with disguised fury"
To be successful
in resolving our disputes
requires that we love
We must love ourselves
enough to love the others
that we dispute with
Capish? You get it?
If we hate an enemy
we can't mediate
So before you do -
look first within, to find out
if you embrace love
Anger is not hate
Disappointment is not hate
Love is not hate
The Mediator is not your lawyer
The mediator builds trust and assists the parties to reach an agreement.
Other than when asked directly, and then only to a certain extent, the mediator will not give legal advice, nor advocate for either party, even if the mediator is an attorney.
The mediator tells each participant that he/she should seek out independent legal advice. The more comfortable the parties are with the mediator, the less likely they are to actually follow this advice, figuring, no doubt correctly, that the mediator is not likely to try to take advantage of them.
What the party may fail to realize or appreciate is that the mediator is completely neutral. So, if the party is mistaken about the law, the mediator will not disabuse the party of their mistaken assumptions. In fact, this will very often not even come to the attention of the mediator, as the mediator is trained to ask different questions than an attorney who is representing (i.e., advocating for) a party.
Even in mediation, the normal rules apply - don't sign any important legal documents until you have consulted with an attorney and are sure you understand the legal and practical significance of the document.
Other than when asked directly, and then only to a certain extent, the mediator will not give legal advice, nor advocate for either party, even if the mediator is an attorney.
The mediator tells each participant that he/she should seek out independent legal advice. The more comfortable the parties are with the mediator, the less likely they are to actually follow this advice, figuring, no doubt correctly, that the mediator is not likely to try to take advantage of them.
What the party may fail to realize or appreciate is that the mediator is completely neutral. So, if the party is mistaken about the law, the mediator will not disabuse the party of their mistaken assumptions. In fact, this will very often not even come to the attention of the mediator, as the mediator is trained to ask different questions than an attorney who is representing (i.e., advocating for) a party.
Even in mediation, the normal rules apply - don't sign any important legal documents until you have consulted with an attorney and are sure you understand the legal and practical significance of the document.
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.
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.
Step 7 - DRS Model - Closure
Step 7 of the Dispute Resolution Services, Inc. (DRS) model of mediation is Closure.
However tempting it might be to either leave immediately if no agreement is reached at the mediation, or to leave immediately upon receiving a copy of an agreement, experience suggests that some reinforcement and acknowledgment of the efforts of the parties at the mediation will lead to a better outcome.
If an agreement is reached, the parties should be congratulated, and reminded that everything that was said at the mediation is confidential. The mediator will typically let the parties know that should any difficulties arise in the carrying out of the agreement, they are welcome to return for another session should they feel it will be fruitful.
If no agreement is reached during the mediation session, the parties should be thanked for their efforts, and reminded that everything said at the mediation is confidential and that the mediator cannot be called as a witness by either side. Typically, the mediator will contact the parties again in a week or two to discuss the need or value of another mediation session.
Oftentimes, parties who were unable to reach a complete resolution at a mediation will be able to resolve the dispute at a later time without going to court. Sometimes, it just takes a few days or weeks for the parties to process the events at the mediation, and to more deeply consider the best and worst alternatives to a negotiated settlement.
However tempting it might be to either leave immediately if no agreement is reached at the mediation, or to leave immediately upon receiving a copy of an agreement, experience suggests that some reinforcement and acknowledgment of the efforts of the parties at the mediation will lead to a better outcome.
If an agreement is reached, the parties should be congratulated, and reminded that everything that was said at the mediation is confidential. The mediator will typically let the parties know that should any difficulties arise in the carrying out of the agreement, they are welcome to return for another session should they feel it will be fruitful.
If no agreement is reached during the mediation session, the parties should be thanked for their efforts, and reminded that everything said at the mediation is confidential and that the mediator cannot be called as a witness by either side. Typically, the mediator will contact the parties again in a week or two to discuss the need or value of another mediation session.
Oftentimes, parties who were unable to reach a complete resolution at a mediation will be able to resolve the dispute at a later time without going to court. Sometimes, it just takes a few days or weeks for the parties to process the events at the mediation, and to more deeply consider the best and worst alternatives to a negotiated settlement.
Step 6 - DRS Model - Finalizing the Agreement
Step 6 of the Dispute Resolution Services, Inc. (DRS) model of mediation is Finalizing the Agreement.
Assuming that you are able to arrive at a specific solution that resolves the disputed issues, there are basically three methods for finalizing the agreement.
First, you can finalize the terms of the agreement in a written contract form. Good agreements reflect the parties' mutual concerns, interests and promises and conditions. They are simple, specific, and leave no doubt as to what each party will perform. After the agreement has been reviewed, revised if necessary, and finalized, both parties sign the agreement.
Second, depending on the issues being resolved and the maturity and emotions of the parties, some agreements can be informal and open-ended, and merely summarized verbally. Verbal agreements in mediation depend on the good faith of the parties for follow-through, and are not otherwise enforceable.
Finally, the parties may schedule a later appointment to finalize the agreement. This is appropriate if one or both parties want the agreement to be reviewed by an attorney. In a divorce mediation, the parties would take the agreement to their attorneys for review and to finalize the paperwork for a judgment. The parties themselves are responsible for filing any papers with the court. However, there are specific terms that should be included in the mediation agreement in order for it to be enforceable in court. A competent mediator will ensure that the agreement contains both a waiver of confidentiality with regard to the agreement itself and a clear statement that the parties intend for the agreement to be enforceable - if that is what the parties desire.
If both parties are represented by attorneys at the mediation, the attorneys will most often draft the agreement at the mediation, and create any additional paperwork at a later time.
Assuming that you are able to arrive at a specific solution that resolves the disputed issues, there are basically three methods for finalizing the agreement.
First, you can finalize the terms of the agreement in a written contract form. Good agreements reflect the parties' mutual concerns, interests and promises and conditions. They are simple, specific, and leave no doubt as to what each party will perform. After the agreement has been reviewed, revised if necessary, and finalized, both parties sign the agreement.
Second, depending on the issues being resolved and the maturity and emotions of the parties, some agreements can be informal and open-ended, and merely summarized verbally. Verbal agreements in mediation depend on the good faith of the parties for follow-through, and are not otherwise enforceable.
Finally, the parties may schedule a later appointment to finalize the agreement. This is appropriate if one or both parties want the agreement to be reviewed by an attorney. In a divorce mediation, the parties would take the agreement to their attorneys for review and to finalize the paperwork for a judgment. The parties themselves are responsible for filing any papers with the court. However, there are specific terms that should be included in the mediation agreement in order for it to be enforceable in court. A competent mediator will ensure that the agreement contains both a waiver of confidentiality with regard to the agreement itself and a clear statement that the parties intend for the agreement to be enforceable - if that is what the parties desire.
If both parties are represented by attorneys at the mediation, the attorneys will most often draft the agreement at the mediation, and create any additional paperwork at a later time.
Step 5 - DRS Model - The optional Caucus
Step 5 in the Dispute Resolution Services, Inc. (DRS) model is the optional caucus. The caucus, or individual interview, is a technique for obtaining more information about each party's position and determining the areas of flexibility of the parties. The mediator meets separately with one of the disputants (and his or her attorney).
Some mediators never use the caucus, while others never mediate without using the caucus, particularly in litigated cases. The caucus can be useful (1) to clarify details or obtain personal data in a private atmosphere; (2) to move beyond an impasse; (3) to build trust or reduce tension; (4) to explore movement or test positions; (5) to allow people to cool off and reflect, or to allow the mediator time to absorb and analyze new information; (6) to explore hidden agendas; (7) to allow the disputants to let off steam, or to save face; (8) to learn what people want and what they are willing to give; and (9) to brainstorm.
It is important in the caucus that the disputants stress to the mediator, and the mediator to the disputants, that everything stated is confidential, except that which the mediator is expressly authorized to disclose to the other party.
According to the DRS, while it is common for the parties to ask the mediator's opinion or judgments during a caucus, the mediator should away away from this, continuing to communicate impartiality, emphasizing strengths to both parties and areas of agreement.
If an agreement in principle seems to have been reached in caucus, the parties are ready to move to Step 6 of the mediation process. If fighting erupts, one must either continue the joint negotiations or re-caucus. There are times when no agreement will be reached, and it may be appropriate to ask the parties whether they would like to discontinue the mediation or reschedule for another day. The mediator should allow the parties to determine when further mediation will not be successful.
Some mediators never use the caucus, while others never mediate without using the caucus, particularly in litigated cases. The caucus can be useful (1) to clarify details or obtain personal data in a private atmosphere; (2) to move beyond an impasse; (3) to build trust or reduce tension; (4) to explore movement or test positions; (5) to allow people to cool off and reflect, or to allow the mediator time to absorb and analyze new information; (6) to explore hidden agendas; (7) to allow the disputants to let off steam, or to save face; (8) to learn what people want and what they are willing to give; and (9) to brainstorm.
It is important in the caucus that the disputants stress to the mediator, and the mediator to the disputants, that everything stated is confidential, except that which the mediator is expressly authorized to disclose to the other party.
According to the DRS, while it is common for the parties to ask the mediator's opinion or judgments during a caucus, the mediator should away away from this, continuing to communicate impartiality, emphasizing strengths to both parties and areas of agreement.
If an agreement in principle seems to have been reached in caucus, the parties are ready to move to Step 6 of the mediation process. If fighting erupts, one must either continue the joint negotiations or re-caucus. There are times when no agreement will be reached, and it may be appropriate to ask the parties whether they would like to discontinue the mediation or reschedule for another day. The mediator should allow the parties to determine when further mediation will not be successful.
Step 4 - DRS Model - Conflict, Communiucation and Negotiations
Step 4 in the Dispute Resolution Services (DRS) model is Conflict, Communication, and Negotiations.
Most people think of this step as the guts of a mediation, and may not even realize that the other steps exist.
Mediators are trained to "surface the conflict". Some think of this as "getting to the bottom" of the dispute, uncovering the "real" dispute, or getting to the "heart" of the matter. The mediator's role, in the DRS model, is to encourage the open expression of the underlying fears, belief systems and feelings that surround and control the conflict.
Once the parties can acknowledge the feelings and fears underlying the conflict, the mediator can help to separate those feelings and fears from the issues at hand. The parties can then be empowered to work together towards a resolution that recognizes and encompasses both of their needs, feelings and personal sense of fairness, while reflecting the mutuality of the conflict, the resolution, and the mediation process. Touchy, feely, and one can almost hum a few bars of Kumbaya. Of course, we could all just pretend that feelings and fears don't exist, or, if they do exist, they don't really affect anything we say or do. Mediation provides a safe structure, and the excuse we need, to acknowledge and address feelings and fears.
Once the conflict is surfaced, the mediator encourages and fosters constructive communications. Mediation training is essentially communications skill training geared towards conflict resolution.
DRS has modeled its method of negotiation around four basic principles:
Most people think of this step as the guts of a mediation, and may not even realize that the other steps exist.
Mediators are trained to "surface the conflict". Some think of this as "getting to the bottom" of the dispute, uncovering the "real" dispute, or getting to the "heart" of the matter. The mediator's role, in the DRS model, is to encourage the open expression of the underlying fears, belief systems and feelings that surround and control the conflict.
Once the parties can acknowledge the feelings and fears underlying the conflict, the mediator can help to separate those feelings and fears from the issues at hand. The parties can then be empowered to work together towards a resolution that recognizes and encompasses both of their needs, feelings and personal sense of fairness, while reflecting the mutuality of the conflict, the resolution, and the mediation process. Touchy, feely, and one can almost hum a few bars of Kumbaya. Of course, we could all just pretend that feelings and fears don't exist, or, if they do exist, they don't really affect anything we say or do. Mediation provides a safe structure, and the excuse we need, to acknowledge and address feelings and fears.
Once the conflict is surfaced, the mediator encourages and fosters constructive communications. Mediation training is essentially communications skill training geared towards conflict resolution.
DRS has modeled its method of negotiation around four basic principles:
- Separating content issues from process issues.
- Focusing on the interdependence of the parties. The mediator looks for shared interests that may underline the positions the parties have taken.
- Empowering the parties to invent multiple options. Negotiations are the perfect time for creative thinking. The mediator must expand the view and broaden the picture of the disputants.
- Refining and testing the proposed options.
Step 3 - DRS Model - Setting the Agenda
Step 3 in the Dispute Resolution Services, Inc. (DRS) model of mediation is Setting the Agenda.
According to the DRS manual, the single most important function of the mediator is to set the agenda or help the disputants define the issues and determine their priorities. While the parties are the ones who actually define the issues, the mediator can assist in organizing the discussion.
It is often useful to put the agenda in writing and to share it with both parties. By agreeing to a common agenda of items and issues to be discussed, the parties have already shown that they are capable of reaching agreement on at least some issues - in this case, what should be discussed.
Depending on the complexity of the agenda, some items may be reserved for future discussion at other sessions of a mediation. As the mediation continues, the disputants may agree to add or subtract items from the agenda. This often occurs as the mediation progresses and it becomes apparent that some issues are either unimportant or no longer contested. At the same time, parties sometimes add an item to the agenda just after it appears that a full resolution can be reached.
There are many reasons that items may be added to the agenda. One of those reasons is that the disputants may not be ready to give up the conflict.
If additional mediation sessions are necessary, the disputants may be given homework to that the negotiations can proceed smoothly and all parties are prepared to discuss the items on the agenda. For example, one or both disputants may be asked to obtain estimates of fair market value, survey land, consult with a professional, or perform other tasks that will assist in resolving all items. This assists the parties to be actively engaged in the process, allowing them to own the dispute and therefore own the responsibility to resolve the dispute.
According to the DRS manual, the single most important function of the mediator is to set the agenda or help the disputants define the issues and determine their priorities. While the parties are the ones who actually define the issues, the mediator can assist in organizing the discussion.
It is often useful to put the agenda in writing and to share it with both parties. By agreeing to a common agenda of items and issues to be discussed, the parties have already shown that they are capable of reaching agreement on at least some issues - in this case, what should be discussed.
Depending on the complexity of the agenda, some items may be reserved for future discussion at other sessions of a mediation. As the mediation continues, the disputants may agree to add or subtract items from the agenda. This often occurs as the mediation progresses and it becomes apparent that some issues are either unimportant or no longer contested. At the same time, parties sometimes add an item to the agenda just after it appears that a full resolution can be reached.
There are many reasons that items may be added to the agenda. One of those reasons is that the disputants may not be ready to give up the conflict.
If additional mediation sessions are necessary, the disputants may be given homework to that the negotiations can proceed smoothly and all parties are prepared to discuss the items on the agenda. For example, one or both disputants may be asked to obtain estimates of fair market value, survey land, consult with a professional, or perform other tasks that will assist in resolving all items. This assists the parties to be actively engaged in the process, allowing them to own the dispute and therefore own the responsibility to resolve the dispute.
Step 2 - DRS Model - Initial Statements
Step Two of the DRS Model of mediation is the initial statements by the disputants (or their attorneys).
There are two purposes for the initial statements. First, it allows the mediator to hear what the dispute is about in the words of the disputants themselves. Second, it allows each disputant to hear what the other disputant has to say.
The mediator may jot down various issues or feelings discussed by the disputants, and will typically listen carefully, making sure that neither disputant is interrupted by anyone. It is not unusual for other issues or emotions to emerge later in the mediation session.
It is sometimes very difficult for the disputants to sit quietly while the other speaks. There are a variety of techniques that a skillful mediator may use to ensure that each party is permitted to speak.
Parties sometimes want to include witnesses or evidence at this point in the mediation. If both parties and the mediator agree to permit witnesses or other evidence, it is best if the witnesses remain outside until they are needed.
With regard to evidence, in the DRS model the proceedings are not bound by the rules of evidence used in courtrooms. For example, lay opinions may be permitted, there is no cross-examination of witnesses, and the attorneys, if present, should not be permitted to use the proceedings as another tool for discovery. Furthermore, the strict confidentiality regarding mediations includes witness statements made at mediations and all documents prepared for the mediation. Care should be taken that the mediation is not used to "bury" evidence.
The point of evidence and witnesses at a trial is to convince the judge or jury. The purpose at mediation is to convince the other disputant, not the mediator. The disputants are not encouraged to bring witnesses to mediations in the DRS model, though there are exceptions when they may be helpful or even necessary to a complete resolution of a dispute.
There are two purposes for the initial statements. First, it allows the mediator to hear what the dispute is about in the words of the disputants themselves. Second, it allows each disputant to hear what the other disputant has to say.
The mediator may jot down various issues or feelings discussed by the disputants, and will typically listen carefully, making sure that neither disputant is interrupted by anyone. It is not unusual for other issues or emotions to emerge later in the mediation session.
It is sometimes very difficult for the disputants to sit quietly while the other speaks. There are a variety of techniques that a skillful mediator may use to ensure that each party is permitted to speak.
Parties sometimes want to include witnesses or evidence at this point in the mediation. If both parties and the mediator agree to permit witnesses or other evidence, it is best if the witnesses remain outside until they are needed.
With regard to evidence, in the DRS model the proceedings are not bound by the rules of evidence used in courtrooms. For example, lay opinions may be permitted, there is no cross-examination of witnesses, and the attorneys, if present, should not be permitted to use the proceedings as another tool for discovery. Furthermore, the strict confidentiality regarding mediations includes witness statements made at mediations and all documents prepared for the mediation. Care should be taken that the mediation is not used to "bury" evidence.
The point of evidence and witnesses at a trial is to convince the judge or jury. The purpose at mediation is to convince the other disputant, not the mediator. The disputants are not encouraged to bring witnesses to mediations in the DRS model, though there are exceptions when they may be helpful or even necessary to a complete resolution of a dispute.
Training, Education and Experience
Advanced Training as a Mediator
- Mediation. Mark Warfel has basic and advanced training in mediation, and experience as a mediator, father, attorney, educator, coach, and businessman.
- Initial "Basic Mediation Training" by three top mediators, through the Los Angeles County Bar Association's Dispute Resolution Services, Inc.
- Advanced training in Family and Divorce mediation, an intense program focused on advanced mediation techniques particularly in the area of complex family issues, by Forrest S. Mosten, Esq., PhD., adjunct professor of Mediation at the UCLA School of Law, author of The Complete Guide to Mediation: The Cutting-Edge Approach to Family Law Practice and Mediation Career Guide -- A Strategic Approach to Building a Successful Practice through the Los Angeles County Bar Association's Dispute Resolution Services, Inc.
- Advanced training in "Mediating the Litigated Case" by Myer Sankary, Esq., CMCT, one of the most effective mediators in the region, through the Los Angeles County Bar Association's Dispute Resolution Services, Inc.
- "Advanced Business & Commercial Mediation Training" by Kenneth Cloke, JD, LLM, PhD, and author of The Crossroads of Conflict (2006), which shows how to locate the root sources of conflict and remove the barriers to reconciliation, collaboration, and community, through the Los Angeles County Bar Association's Dispute Resolution Services, Inc.
Legal Education and Training as an Attorney
- J.D. UCLA School of Law - Ratings
- Member, California State Bar, no. 197874
- Member, Family Law Section State Bar of California and Los Angeles County Bar Association
- Member, Real Property Section, State Bar of California and Los Angeles County Bar Association
- Partner, Law Offices of Mark J. Warfel
- Appellate Attorney - successful appellate work in the Second, Fourth, and Fifth Appellate Districts; contributed to briefs in landmark move-away decision made by the California Supreme Court, In re the Marriage of LaMusga (2004) 32 Cal.4th 1072, in which the California Supreme Court majority (6-1) held that a noncustodial parent who opposes a custodial parent's move must show that the move would cause detriment to child, after which trial court must evaluate all relevant factors to determine whether it is in child's best interests to change custody.
- Family Law Attorney - more than 800 Family Law matters of all types with clients from across the State and throughout the nation, including divorce, legal separation, paternity, guardianship, and Marvin litigation. Child custody, visitation, child and spousal support, joinder motions, business, real property, pension, stock, and other property issues.
- Real Property Attorney - trial and transactional matters, including purchase and sale transactions, specific performance litigation, opinion letters and analysis of securitized loans, title disputes, ownership disputes, boundary line disputes, mechanic's liens, commercial and residential landlord-tenant disputes, commercial lease negotiations, premises liability litigation, partnership disputes, and bankruptcy matters.
- Estate Planning - transactional and litigation matters, revocable trusts, irrevocable trusts, durable power of attorney for health care, wills, advanced health care directives, and powers of attorney.
Educational and Coaching Experience
- Former High School Teacher and Debate Coach
- Secondary Teaching Credential from California State University at Los Angeles.
- B.A. - History earned with distinction from the University of Redlands
Step 1 - DRS Model Opening Statement by the Mediator
Much of the Opening Statement by the Mediator is often accomplished prior to the mediation in litigated matters. In community mediation (non-litigation), the participants may not be aware of how this thing called mediation works. Whether you are mediating a litigated or non-litigated matter, it is essential that all of the participants understand the concepts in the Mediator's Opening Statement, since it identifies the participants and explains the process.
Know your mediator. The mediator introduces him or herself, explains his or her role as a neutral, and discloses any prior dealings or relationships of any type with the parties or their attorneys.
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.
Understanding the mediation process.
The mediator may explain that 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 shall be 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 shall participate only as agreed by the parties.
Caucus. The mediator 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(s). 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 their attorney. The parties may also write down an agreement and wait to execute the agreement until his or her own attorney has seen it.
Voluntary Process. The mediator should explain that 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. A general feeling among mediators is that 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.
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.
Know your mediator. The mediator introduces him or herself, explains his or her role as a neutral, and discloses any prior dealings or relationships of any type with the parties or their attorneys.
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.
Understanding the mediation process.
The mediator may explain that 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 shall be 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 shall participate only as agreed by the parties.
Caucus. The mediator 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(s). 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 their attorney. The parties may also write down an agreement and wait to execute the agreement until his or her own attorney has seen it.
Voluntary Process. The mediator should explain that 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. A general feeling among mediators is that 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.
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.
As a peacemaker, lawyer has a superior opportunity of being a good man
"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.
-- 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.
Mediating the Litigated Case
This week I will participate in additional training regarding "Mediating the Litigated Case."
I'll keep you posted on additional insights gained from that training.
I'll keep you posted on additional insights gained from that training.
Convening the Mediation
Even before the opening statement, the mediator must convene the mediation.
One of the first things the mediator does after being contacted by a party or attorney is to determine whether all of the other "necessary parties" are willing to try to resolve the issue(s) at a mediation. Sometimes, the mediator will call the other party(ies) or attorney(s) to explain a little about mediation and to find out whether everyone wants to mediate. Other times, the attorneys will have already agreed to mediation, and just want to get the matter settled as quickly and fairly as possible.
Before one can know whether the "necessary parties" are going to participate, one must learn who those parties are. Who has the authority to sign the settlement agreement? Once their identity is known, the mediator can determine whether the mediator has any conflict of interest.
Any actual or even potential conflict of interest must be disclosed by the mediator, as well as all prior contacts with the parties and their attorneys. Perhaps the mediator has mediated several cases with one of the attorneys involved in this mediation - the other party and attorney need to know this.
If anything about the issues or the parties push the mediator's buttons, preventing the mediator from being neutral and impartial, this is the time to bring that up and bow out of the mediation.
All parties must understand that an essential element of mediation is self-determination - the parties create and own their solution, not the mediator, not the courts. The parties must understand that participation and reaching an agreement are voluntary - it is not necessary to reach an agreement or to participate in mediation.
All parties must understand that the mediation process and all communications related to the mediation are confidential and not admissible in a civil court (though they may be admissible in a criminal court - e.g., one party states at mediation, "I'm going to kill all of the mosquitoes in your backyard if you don't settle on my terms." This would be admissible in a criminal trial for, say, blackmail.
The parties and mediator decide whether or not legal briefs or other written information is going to be provided to the mediator prior to the mediation.
The parties and the mediator clear their calendars, and make a commitment to the process.
Fees are agreed upon and paid in advance. The cancellation policy is understood by all parties.
Once all the necessary parties have all the necessary information, and everyone agrees to be in one place at the same time, with sufficient time set aside to come to an agreement on the issues, fees are agreed upon and paid, and documents are exchanged and provided to the mediator, the matter is ready for mediation and may be convened.
One of the first things the mediator does after being contacted by a party or attorney is to determine whether all of the other "necessary parties" are willing to try to resolve the issue(s) at a mediation. Sometimes, the mediator will call the other party(ies) or attorney(s) to explain a little about mediation and to find out whether everyone wants to mediate. Other times, the attorneys will have already agreed to mediation, and just want to get the matter settled as quickly and fairly as possible.
Before one can know whether the "necessary parties" are going to participate, one must learn who those parties are. Who has the authority to sign the settlement agreement? Once their identity is known, the mediator can determine whether the mediator has any conflict of interest.
Any actual or even potential conflict of interest must be disclosed by the mediator, as well as all prior contacts with the parties and their attorneys. Perhaps the mediator has mediated several cases with one of the attorneys involved in this mediation - the other party and attorney need to know this.
If anything about the issues or the parties push the mediator's buttons, preventing the mediator from being neutral and impartial, this is the time to bring that up and bow out of the mediation.
All parties must understand that an essential element of mediation is self-determination - the parties create and own their solution, not the mediator, not the courts. The parties must understand that participation and reaching an agreement are voluntary - it is not necessary to reach an agreement or to participate in mediation.
All parties must understand that the mediation process and all communications related to the mediation are confidential and not admissible in a civil court (though they may be admissible in a criminal court - e.g., one party states at mediation, "I'm going to kill all of the mosquitoes in your backyard if you don't settle on my terms." This would be admissible in a criminal trial for, say, blackmail.
The parties and mediator decide whether or not legal briefs or other written information is going to be provided to the mediator prior to the mediation.
The parties and the mediator clear their calendars, and make a commitment to the process.
Fees are agreed upon and paid in advance. The cancellation policy is understood by all parties.
Once all the necessary parties have all the necessary information, and everyone agrees to be in one place at the same time, with sufficient time set aside to come to an agreement on the issues, fees are agreed upon and paid, and documents are exchanged and provided to the mediator, the matter is ready for mediation and may be convened.
Mediation Mechanics - Steps in a DRS Mediation
In the Dispute Resolution Services, Inc. model, there are seven steps in a mediation. These steps are similar to a recipe or formula. Timing and judgment of when to move to the next phase or repeat or skip a phase comes with training and experience.
The seven steps of a DRS model mediation are:
1. The Mediator's Opening Statement.
2. Initial Statements by the Disputants or their attorneys.
3. Setting the Agenda.
4. Surfacing the Conflict, Communications and Structuring Negotiations.
5. The optional Caucus.
6. Finalizing the Agreement.
7. Closure.
Most attorneys and parties focus primarily on steps 3 through 6. DRS-trained mediators realize that the opening statements by the mediator and the parties plays a pivotal role in creating the environment that facilitates reaching an agreement. Proper closure is important if the parties are, in fact, to have closure with regard to the dispute.
Click on a step to obtain additional insight into the process.
Depending on the purpose and setting of the mediation, some of the steps may be achieved prior to the mediation. The information contained in the Mediator's Opening Statement may be transmitted prior to mediation, and attorneys for represented parties would be wise to review the informality of the mediation process, confidentiality rules, and the fact that it is the parties who will ultimately fashion and implement an agreement, not the mediator.
The Initial Statements by the parties and at least an outline of the agenda may be set forth in written briefs submitted to the mediator in advance.
In a litigated matter, the parties may start out in separate caucuses and be together in a joint session, if at all, only to sign a written agreement.
The seven steps of a DRS model mediation are:
1. The Mediator's Opening Statement.
2. Initial Statements by the Disputants or their attorneys.
3. Setting the Agenda.
4. Surfacing the Conflict, Communications and Structuring Negotiations.
5. The optional Caucus.
6. Finalizing the Agreement.
7. Closure.
Most attorneys and parties focus primarily on steps 3 through 6. DRS-trained mediators realize that the opening statements by the mediator and the parties plays a pivotal role in creating the environment that facilitates reaching an agreement. Proper closure is important if the parties are, in fact, to have closure with regard to the dispute.
Click on a step to obtain additional insight into the process.
Depending on the purpose and setting of the mediation, some of the steps may be achieved prior to the mediation. The information contained in the Mediator's Opening Statement may be transmitted prior to mediation, and attorneys for represented parties would be wise to review the informality of the mediation process, confidentiality rules, and the fact that it is the parties who will ultimately fashion and implement an agreement, not the mediator.
The Initial Statements by the parties and at least an outline of the agenda may be set forth in written briefs submitted to the mediator in advance.
In a litigated matter, the parties may start out in separate caucuses and be together in a joint session, if at all, only to sign a written agreement.
Mediation - what is it designed to do and who benefits?
After completing 30-hour Basic Mediation Training with 23 other incredibly talented and resourceful people, then advanced training in mediating the litigated case and advanced business & commercial mediation training, the answer to almost any question remotely connected to mediation is "it depends." This blog is one approach to answering the question "depends on what?"
The Dispute Resolution Services (DRS) model encourages the mediator to focus strictly on the process. As the Training Manual for Mediators puts it, "Mediation is a process and not an end result."
The mediator uses his or her judgment to "assist" the parties in reaching a fair agreement, but the DRS mediation model insists that it is the parties who participate in mediation who "construct their own mutual agreement." In the end, the mediator must use his or her own best judgment - whether the parties could be trusted to reach their own agreement "depends" in part on the sensibilities of the mediator and the parties.
Some mediators spend part of the time convincing the parties to face reality based on the mediator's analysis of the strength of their position, and part of the time trying to stay out of the way and just focus on process.
Mediation is different "in that it seeks to accomplish a healing of the relationships involved in the dispute." However, "Mediators are not therapists, counselors or social workers. While they are trying to help disputants deal with aspects of their relationships, they are not trying to resolve every quirk they find in either the individual or their family; nor are they advice givers. Mediators are also not police; they may suggest compliance with the law but they do not enforce the law nor do they enforce agreements that disputants enter into between themselves."
On the other hand, the DRS manual, and the court system, define the issue somewhat differently. "The problem," according to the DRS manual, "is that many minor disputes that could be settled by negotiations find their way into the judicial system and take up excessive amounts of time and money and - in the end - do not necessarily settle the problem."
At the same time, according to the DRS, "[m]ediation works for certain kinds of problems and not others. Many disputes properly require a decision by a judge and must involve the adversarial proceedings that attorneys and judges are trained to conduct."
So here's the bottom line. The court system wants to avoid disputes that it could care less about - those involving poor and middle class people and not a whole lot of money. The "problem" from the court's perspective, is that too many disputes tend to bog down a system designed for litigating the most complex and important matters in our society.
Parties want to resolve disputes without having to spend a lot of money on attorneys, experts and trial preparation, and without having to go to court. They like mediation because it protects their privacy, is less expensive, is confidential, and allows the parties control over the resolution. Having a third-party neutral present changes the dynamics of the dispute, and a good neutral can assist the parties in changing the dynamics of their understanding of the what the dispute is really all about.
The court process is designed to cope with the most complex and significant issues we can face -literally life and death situations. The rules and procedures have been refined accordingly. Complying with these rules and procedures is expensive - but if someone's life is at stake, for example, or their freedom, the cost is justified. On the other hand, if your dispute is not quite so serious, perhaps the method of dispute resolution should be less formal and less costly.
A bulldozer can move a lot of dirt in a hurry - but would you rent one to sweep the leaves from your patio?
For some people mediation is merely a less costly alternative permitting settlement of a lawsuit. For others, mediation facilitates insight and healing of relationships. A good mediator can help parties to understand that every dispute has multiple layers or levels on which it can be understood and upon which a more satisfying and equitable resolution may be possible.
The Dispute Resolution Services (DRS) model encourages the mediator to focus strictly on the process. As the Training Manual for Mediators puts it, "Mediation is a process and not an end result."
The mediator uses his or her judgment to "assist" the parties in reaching a fair agreement, but the DRS mediation model insists that it is the parties who participate in mediation who "construct their own mutual agreement." In the end, the mediator must use his or her own best judgment - whether the parties could be trusted to reach their own agreement "depends" in part on the sensibilities of the mediator and the parties.
Some mediators spend part of the time convincing the parties to face reality based on the mediator's analysis of the strength of their position, and part of the time trying to stay out of the way and just focus on process.
Mediation is different "in that it seeks to accomplish a healing of the relationships involved in the dispute." However, "Mediators are not therapists, counselors or social workers. While they are trying to help disputants deal with aspects of their relationships, they are not trying to resolve every quirk they find in either the individual or their family; nor are they advice givers. Mediators are also not police; they may suggest compliance with the law but they do not enforce the law nor do they enforce agreements that disputants enter into between themselves."
On the other hand, the DRS manual, and the court system, define the issue somewhat differently. "The problem," according to the DRS manual, "is that many minor disputes that could be settled by negotiations find their way into the judicial system and take up excessive amounts of time and money and - in the end - do not necessarily settle the problem."
At the same time, according to the DRS, "[m]ediation works for certain kinds of problems and not others. Many disputes properly require a decision by a judge and must involve the adversarial proceedings that attorneys and judges are trained to conduct."
So here's the bottom line. The court system wants to avoid disputes that it could care less about - those involving poor and middle class people and not a whole lot of money. The "problem" from the court's perspective, is that too many disputes tend to bog down a system designed for litigating the most complex and important matters in our society.
Parties want to resolve disputes without having to spend a lot of money on attorneys, experts and trial preparation, and without having to go to court. They like mediation because it protects their privacy, is less expensive, is confidential, and allows the parties control over the resolution. Having a third-party neutral present changes the dynamics of the dispute, and a good neutral can assist the parties in changing the dynamics of their understanding of the what the dispute is really all about.
The court process is designed to cope with the most complex and significant issues we can face -literally life and death situations. The rules and procedures have been refined accordingly. Complying with these rules and procedures is expensive - but if someone's life is at stake, for example, or their freedom, the cost is justified. On the other hand, if your dispute is not quite so serious, perhaps the method of dispute resolution should be less formal and less costly.
A bulldozer can move a lot of dirt in a hurry - but would you rent one to sweep the leaves from your patio?
For some people mediation is merely a less costly alternative permitting settlement of a lawsuit. For others, mediation facilitates insight and healing of relationships. A good mediator can help parties to understand that every dispute has multiple layers or levels on which it can be understood and upon which a more satisfying and equitable resolution may be possible.
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