July 14, 2017 • By Dennis Beaver
For anyone going through a not-so-friendly divorce – or just about any dispute that promises huge attorney fees – chances are good that someone will suggest giving mediation a try.
And, just what is mediation?
While you might not be able to give a dictionary definition, if you’re thinking, “I’ve heard that term before in a news story about a federal mediator appointed to help resolve a labor dispute,” you on the right track.
In our experience, some of the best mediators are trial lawyers with years of courtroom experience giving them insight into people, problems and ways of helping them find solutions. Bakersfield attorney George F. Martin has practiced law since 1972 and shared insights into what clients and lawyers both need to know when in a mediation.
A confidential, problem-solving process
“Mediation is a process in which a person who is completely neutral–not taking anyone’s side–helps the parties examine issues in the case which have prevented settlement. My job as a mediator is to help them reach a settlement by encouraging open discussion in an emotionally safe environment,” Martin points out.
Lawyers learn that there are issues and then real issues. We asked Martin how he discovers those real issues.
“By law, a mediation is confidential. I make it clear that whatever I am told stays with me. When clients understand that, they are far more willing to then reveal the rest of the story, why the case has not settled, or even how the matter wound up in court.
“I tell clients they can say anything they want about the case or parties involved and it will not be used against them.”
What does a mediation look like?
Let’s say it’s a divorce case and all efforts at settlement have gone nowhere, so the Court or lawyers have agreed that mediation is the next step. Martin outlined what clients should expect, and, especially, how they should not act:
1. A mediation will be typically conducted either at the mediator’s or lawyer’s office. There will be a number of forms to fill out, the mediator will tell the couple and their lawyers what is expected, and what must be avoided.
2. Yes, it can be difficult, but I tell everyone to please leave hard feelings behind when you come in. Mediators understand these are some of the most difficult times in anyone’s life. Our job is to help you both reach a settlement that is fair and something you can live with.
3. It is often necessary to speak with the lawyers and parties separately and to brief them on the wishes expressed by the other side. Please do not become suspicious as this is part of the process.
4. In very real ways a successful mediation will help you get along with the rest of your life. Your positive attitude, a willingness to compromise and to be fair is the key to success.
Check out the mediator
Lemoore reader “Ellen” went through a divorce mediation conducted by a Fresno criminal defense attorney who, we discovered, has no formal dispute resolution training. They met on three separate occasions, and “reached a settlement,” the “mediator” told us.
Only, there was a monumental problem. The agreement was not written up! While Ellen’s husband was prepared to accept its terms, she was not, and the longer we spoke, it was clear that suited her just fine.
“When you left the mediator office, did you intend to honor the terms of the agreement just reached with your husband?” we asked.
“Yes, sort of, at that time, but then I had some concerns,” she admitted.
And what were those concerns, we wondered? “Spousal support. The support that I would have to pay him. I don’t want to pay him anything, but since I am a teacher and he never could keep a job, I will have to pay him lifetime spousal.”
“So, let me get this clear, Ellen. During the mediation, you agreed with all the terms, right? Everyone left confident your divorce would be wrapped up quickly. Right? And then you have ‘some concerns?’
The real issue in this divorce became clear. It wasn’t spousal support. It was control. Ellen didn’t want the divorce. Here was a scheming and dishonest woman aided by a lawyer who has no business in the role of mediator.
Running Ellen’s story by Martin, he commented, “Once you reach a resolution, to be enforceable it must be in writing and signed. It’s got to be done right now or you have nothing.”
Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.