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MEDIATION – WHY A LITIGATOR WOULD EVEN CONSIDER MEDIATION

October 18, 2011

Part four in an ongoing series by David Kuroda on CHILD CUSTODY ISSUES: AVOIDING TRIAL, HELP FOR FAMILY LAW JUDICIAL OFFICERS RESPONSES TO ELKINS REFORMS AND THE ECONOMY

Unhappy clients create unhappy attorneys. Family law seems to have more than its fair share of unhappy litigants and malpractice insurance rates have increased. Mothers and fathers, it doesn’t seem to matter, have many reasons to complain about what the courts or their attorneys didn’t do for them. They will complain to anyone who will hear, but their dissatisfaction rises to a level of serious concern when the state bar or the Administrative Office of the Courts or the malpractice carriers become involved. When Lori Behar was introduced at bar meetings as the new family law commissioner in Long Beach, she recognized many of the attorneys she had represented in legal malpractice cases. She knew, more quickly than most, some of the hazards of practicing family law.

It is often on the eve of another OSC or trial that the retainer is exhausted and additional funds are requested from the client. Both attorney and litigant become concerned about what the additional funds will produce. It is often at this point that mediation holds promise for relieved attorneys and satisfied clients. Clients can often be encouraged to work out agreements through mediation, agreements that address their needs for fairness and certainty, especially when children are involved, agreements that meet the best interests of their families. Attorneys sleep better knowing their clients are satisfied; they also don’t have to stay up late at night preparing for trial. A number of cases from prominent law firms are being referred to mediation and agreements are being worked out.

Recently a child custody evaluator told me of a settlement reached on the bench outside the courtroom. He had written his report and was ready to testify when the attorneys, parents and evaluator started talking about resolving the custody issue. The matter was resolved. Instead of a court reporter recording the session, one of the attorneys wrote a stipulation confirming the details of the agreement. Good outcome with the settlement, but one wonders how it could have happened earlier in the litigation.

After a talk I gave on mediation and collaborative divorce, a family law litigator challenged “David, I also settle almost all of my cases without going to trial.” I said that’s very good, but let’s look at when the cases settle. The settlement the day before trial may be the same settlement, but how much better for the families if the settlement occurs months earlier, before so much of the family’s savings are spent.

Mr. Kuroda is the former Division Chief, Family Court Services, Superior Court of Los Angeles and directed the Mediation and Conciliation Service, the first and largest court mediation program in the nation. In his 18 years with the Superior Court.

In addition to directing the program, he has personally provided mediation services to over 8,000 families, and has made presentations on collaborative divorce, mediation and divorce to numerous groups of attorneys and mental health professionals. He is a member of A Better Divorce, LAWCDP, the LA Collaborative Family Law Association, and CDRC. He serves on the Family Law Executive Committee, LA County Bar Association. He was recognized by the National Association of Social Workers, NASW, California, with the Lifetime Achievement Award in 2003; he was honored for his contributions to help establish Collaborative Divorce by Collaborative Practice California; in 2007 with the George Nickel Award, California Social Welfare Archives.

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