~ Mediation not Litigation ~

In our opinion, Mediation is the fastest, most cost effective way for advisarial parties to resolve their legal problems, including divorce.  If the parties are not advisarial, then collaborative divorce is the way to go.  Our principal attorney, Don Werno is a Certified Mediator under the provisions of the Dispute Resolution Programs Act.

Mediation can be done in a number of different ways, depending on the parties, their legal problem and what they hope to accomplish through mediation.  In its purest form, mediation involves at least three people, often five people and sometimes many more. 

In a three person mediation, the two parties will meet with the Mediator, without their legal counsel present; the Mediator will not legally represent either party, but will instead provide the legal structure and guidance necessary so that the parties can collaborate together and make mutual decisions about how to best resolve their own legal problem.  The Mediator is also available to explain how the Court might resolve particular aspects of their case, so that the parties can make the most informed decision possible.  If an agreement is reached on some or all of the disputed issues, the Mediator will typically draft a legally binding written settlement document that sets forth the entire agreement, which the parties will sign in the presence of a Notary Public.  That settlement agreement (called a Stipulated Judgment) is later submitted to the Court (along with other forms that the Mediator will draft or help you complete) to be made a valid and binding Court Order.  It’s not uncommon for this type of mediation to be done in one day, although it’s also not unheard of for mediation to occur over a several day period because of the complexity of the issues to be resolved or the sheer number of separate decisions that need to be made.  The job of the Mediator is to guide the parties through the process and to help them negotiate through the rough spots, so that the parties can more efficiently resolve their legal dispute and get back to the things that are truly important - their lives.

In some mediations, the parties, along with their attorneys meet with the Mediator, who works back and forth between the two sides to explore the legal problem and find some way to reach a legally enforceable settlement agreement.  In these types of cases, it’s not uncommon for the attorneys to sign a written agreement that they will resign from representing their client should mediation be unsuccessful.  This ensures that the attorneys will use their best efforts to help their clients obtain a successful result through mediation and also ensures that no “secrets” that might have been divulged in mediation are used in future Court proceedings.

An overriding concern in mediation is that almost everything that is discussed in connection with the mediation process remains confidential, other than the actual written mediation agreement itself, should one be reached.  This concept is known as the “mediation privilege” and is codified in California Evidence Code §§ 1115 through 1128.  The so called mediation privilege has been further refined though published decisions in various cases, including one such case that more clearly defined what the “mediation privilege” actually is.

In the case of Eisendrath v. Superior Court (2003) 109 Cal.App.4th 359, the Court held that:

“Section 1119 states the fundamental rule regarding confidentiality of mediation communications.  It provides: ‘(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any ... civil action ... in which, pursuant to law, testimony can be compelled to be given. ... (c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.’”

As the Courts have repeatedly made crystal clear, the entire purpose of mediation is to assist the parties in resolving their legal problems and to further encourage all parties to speak freely and to use their best efforts at reaching a settlement agreement.  To protect those candid discussions, the legislature created the “mediation privilege,” which ensures that parties can speak candidly without worrying that something they say in mediation might later be used against them in a Court of law – simply put, it can’t and the Courts won’t allow it.

The Mediator may, however, ask the attorneys difficult legal questions that are relevant to the dispute being mediated in an attempt to fully explore the strengths and weaknesses of each side’s case with respect to their various positions.  By working through the legal analysis of a particular case, it can often be seen that one party is stronger in one area, but perhaps weaker in another, thus leading to concessions, consensus and ultimately a successful mediation.

Each mediation is similar and yet different, requiring the Mediator to use their negotiating skills, some psychology, their experience, education and honesty in helping both sides remained focused on the ultimate goal, which is putting an end to their legal dispute and reducing a significant source of stress in their lives, all while saving potentially astronomical amounts of money that would otherwise be paid to attorneys, expert witnesses and the Court itself.

Because mediation involves specific facts and specific rights under the law, it is critically important that the Mediator be both educated and experienced in the area of the law under which the dispute has arisen.  For example, it would make absolutely no sense for a Mediator to try to help a couple resolve their family law problems when the Mediator had never formally studied family law, or practiced family law as an attorney.  At some point in the mediation, the discussion might involve a desire by one of the parties to move to another state with the children of the marriage.  That one problem alone involves a substantial number of legal precedents, prior Court decisions and other issues that must be carefully weighed before an opinion can be rendered or a decision made.  Is the Best Interests of the Child standard to be applied, or a different test?  Given the specific facts of that particular mediation, is it more likely or less likely that one of the parties would prevail if they attempted to move away with the children?  What would a Court decide?  How about spousal support?  Do the factors enumerated in Family Code § 4230 have any bearing on the decision regarding how much spousal support, if any, one of the parties might receive?  What if one of the parties is partially disabled?  If you don’t know how to answer these questions or provide the proper analysis, how can you possibly begin to guide the parties through the complex process of informally resolving their legal problems?  The answer is that you can’t.

Unfortunately, mediation is an area that is poorly regulated under California law.  Literally anyone and everyone who wants to be a Mediator, can be.  There is no training that is required and no license that is granted demonstrating someone’s skills, training or ability as a Mediator.  Sadly, it’s the public that suffers from this stunning lack of regulation and control. 

One of the recent trends is that people who go to law school, but who don’t have the skill and ability to pass a bar examination to become a licensed attorney, become unlicensed Mediators.  While these people certainly have the basic legal education, which forms the basis upon which additional education and experience can be laid, that’s where their skill set often ends.  The truth is that law school doesn’t do a very good job of preparing you to be a lawyer.  In fact, that’s quite likely why they refer to the legal profession as the “practice of law.”  The question is, do you want someone practicing law on you?  We don’t, because our lives and our cases are far too important to trust to an amateur masquerading as a Mediator.

As an attorney, Don Werno not only has the basic legal education required to be a successful Mediator, he has also attended the formal training needed to become a Certified Mediator under the provisions of the Dispute Resolution Programs Act.  Since passing the bar examination, Don has successfully represented hundreds of clients in civil, criminal, family law and aviation cases, involving thousands of Court appearances and the drafting of tens of thousands of pages of legal briefs.  Don has also been a practicing attorney, in good standing with the California Bar Association since June, 1999.  During the thousands of days that Don has been an attorney, including the substantial number of cases resolved through Mediation, Don has learned how to navigate the often complex, highly emotional and critically important legal problems of his clients and he is ready to help you resolve your problems, too; hopefully through Mediation. 

If you would like us to help you resolve your legal problems in a more cost efficient, expeditious and less stressful manner, call us today at (714) 542-4466.  We’re here to help and remember, consultations are always free.

If you would like information on how we can completely mediate your divorce for a flat fee, click  here.

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