MEDIATION: Pros & Cons

California rises like the mythical Phoenix from the ashes of summer’s blazing wildfires[1] only to face even bigger challenges. The rising Covid death toll across our nine Bay Area counties[2] totaled 3,061 on January 11, 2021, at least triple the 1,000 lives lost in this area by late August[3] 2020. Data from various county health departments reveal steeply increasing death tolls throughout the nine San Francisco Bay Area counties[4] . The trifecta of destruction would be incomplete without the arrival of climate challenges – an epic heatwave over the Labor Day holiday weekend brought sweltering triple digit temperatures[5] . Bay Area cities are now preparing for the double whammy of rising sea levels and diminishing Sierra snow-pack[6] . Drought and floods rolled into the time of viral pandemic! But, we are not through with disasters. Now, just as temperatures have dipped precipitously, the impeachment trial of the former president heats up feverishly. The social fabric of America is stretched thin; the population is experiencing far reaching changes. Many are increasingly aware of the call to action of the Black Lives Matter movement, others are impacted by job loss, food insecurity and resulting changes in life circumstances. These are indeed interesting times.

“Justice, justice shall you pursue”
— Deuteronomy 16:20

Against this backdrop of challenges and change, attorneys, clients and self-represented litigants struggle to access family court, many of which, including Contra Costa County Superior Court, are operating with reduced hours, reduced staff, and Zoom hearings. Courts remain open; but under current circumstances, the pace of justice slows.

Despite the onslaught of challenges, attorneys remain ethically bound to competently represent their clients’ interests and to abide by the client’s decisions in determining the objectives of a representation as well as the means by which these objectives are to be pursued[7] . In these times of transition, especially in the context of family law, where domestic violence and familial strife have reached new peaks, it is incumbent on us as attorneys to consider a path that does not involve a trip to the courthouse: mediation. Parties call for expedient dispute resolution, economic efficiency and finality, even as clogged courtrooms contribute to significant delays. Mediation in these turbulent times may allow exactly the pain relief disputants seek.

“The greatest victory is that which requires no battle.”
— Sun Tzu, The Art of War

Unlike litigation, mediation is non-adversarial by design. Family court, by contrast, is all too often a hotbed of strife and warfare. California’s Code of Civil Procedure Section 1775.[1] and Evidence Code Section 1115 each define 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.” Simply the act of agreeing to mediate signals the parties wish to engage in a process that can diminish conflict, foster cooperative problem solving, and rebuild fractured relationships.

Mediation is a voluntary, out-of-court process that is private and confidential. Voluntary means each participant has freely chosen to engage in the mediation. Private means procedural and substantive aspects of mediation sessions are shared only with the participants. Confidences are kept, except under very limited circumstances; commission of criminal acts, or violation of professional ethics, for example. Ordinarily, the mediator will not reveal information discussed in mediation sessions and cannot be subpoenaed as a witness in court proceedings. Mediation proceedings are not available as a public record. What happens in mediation stays in mediation.

Only the settlement agreement, if any is reached, may be introduced in a court proceeding. Because the mediation process is private and confidential, mediation provides the participants with opportunities to engage in frank conversation and to explore openly all of the topics that are relevant to the dispute in a setting where no one is observing or recording the discussions[8] .

Mediation encourages parties to engage in important discussions that may not be possible in the more formal courtroom setting. Courts have their own rules and timelines that are driven by the legal system. If the parties fail to settle their dispute in court, the judge sets a trial date and becomes the decision maker. In mediation, the parties control the substantive discussions and any agreements made. In mediation, parties can speak freely about emotions as well as facts. Solutions need not be defined solely by case law and legal argument. Mediation provides the luxury of time to explore options and offers disputants the control that is otherwise vested in a judicial officer. When the parties become empowered decision makers there is potential for a resolution of their own making.

“The web of our life is of a mingled yarn, good and ill together.”
— William Shakespeare, All’s Well That Ends Well, Act 4 Scene 3, Lines 68-69

There are potential drawbacks to the mediation process. Mediation often is usually cost effective; however, sometimes monetary savings are not realized, matters do not completely resolve or parties reach an insurmountable impasse. Before you commit to the process, be aware of the terrain that lies between the devil and the deep blue sea; in other words, roadmap the waypoints so you engage productively.

Mediation in family law is a tool, and can produce flawed outcomes, as can any tool that is not skillfully handled. Choose your mediator wisely; find the right person to facilitate your discussions. Remember, the skilled mediator’s control of the procedural aspects of the mediation influences the substantive discussions held in your mediation sessions.

Mediation is voluntary. A disputant may refuse mediation – a non-starter that may escalate tensions. A related concern is rooted in the relationship of the parties. Are the parties on an equal footing or is the balance of power weighted unequally due to factors such as wealth, status, role and resources? If the relationship between disputants is disproportionately skewed, a perceptive mediator equalizes the imbalance.

Another potential drawback to mediation is proceeding when parties lack information: for example, coming to the table before discovery concludes or when one party in a family law matter withholds mandatory disclosures. Know what you need before you proceed! Preparation for mediation takes time – another variation on the theme of becoming informed so all salient issues can be addressed. Finally, costs can rapidly escalate if experts are needed to explain technical or financial information to anchor discussions.

Inform yourself. If you are seeking solutions and want to resolve problems cooperatively without the pressures of the courtroom, dealing with aggressive litigation tactics and giving away your decision-making powers to the judge, choose mediation. In these times, when tempers are flared and the family courts are backlogged, mediation might be the best choice of all.

[1] Aiden Vaziri and Anna Buchmann “Smoke: Worst-in-world air quality is another reason to stay inside” San Francisco Chronicle , Thursday August 20, 2020 at A1, reporting 367 wildfires burning across Northern California, resulting in “worst-in-world” air quality.
[2] Napa, Marin, Sonoma, Solano, San Francisco, San Mateo, Contra Costa, Alameda and Santa Clara
[3] Erin Allday, “Pandemic’s toll hits 1,000 in Bay Area” San Francisco Chronicle, Thursday August 20, 2020 at A1.
[4] SFist.com/bay-area-coronavirus-information-updated-daily.
[5] Tuma, D., 2020. Major Heat Wave Coming To Bay Area For Labor Day Weekend: Here’s How Hot It Will Be. [online] ABC7 San Francisco. Available at: <https://abc7news.com/bay-area-weather-flex-alert-ca-accuweather-forecast/6405247/> [Accessed 8 September 2020].
[6] See, https://baykeeper.org/our-work/climate-change-adaptation-san-francisco-bay-area
[7] California Rules of Professional Conduct Rule 1.1 addresses competence in representation and Rule 1.2 speaks to the Scope of Representation and the Allocation of Authority between attorney and client.
[8] Some mediators choose to take notes during the session and destroy their writings when mediation has concluded.