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MEDIATION OFFERS BENEFITS AT ANY STAGE OF THE DISSOLUTION – EARLY REFERRALS FROM THERAPISTS

October 25, 2011

Part five 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

Mediation can actually occur at virtually any stage of the divorce; post-dissolution issues can be resolved through mediation, helping parents avoid further litigation. Although sooner is better for containing the conflict and costs, for some couples, mediation isn’t considered until they finally realize the damaging effects of continued litigation or exhaust their financial resources. By the time some couples seek “meaningful mediation,” they are embittered with each other, disillusioned by the process, and scared of an uncertain outcome in court. A mediated agreement can help parties finally put an end to the divorce war. Even if parties only resolve the child custody dispute, parties are often more likely to resolve the other aspects of the conflict.

Of course referring a case to mediation early is helpful to the parties. The mental health professional is often asked for recommendations for attorneys or mediators, so the family law attorney would be well advised to develop good working relationships with therapists. A father recently interviewed a number of prospective attorneys for his dissolution. The attorney he chose was not the one who offered to vigorously get the best “deal” for him, but rather the one who counseled doing things in a way that would help the children. Ironically, it is often the attorney who promises the most that is not chosen. The reason, of course, is that in family law cases, the “other side” is usually a parent and not a large corporation.

Mediation delayed is mediation denied. In the 1980’s, attorneys and litigants gathered in Dept. 2, the Master Calendar Courtroom and were assigned to courtrooms. When mediation became mandatory in 1981, attorneys usually accompanied the parents to the Conciliation Court for the mediation sessions. The mediators were usually assigned two cases a day and could devote the time necessary to resolve cases. Where there were children to interview, the mediators could even work with one family for an entire day. Families could “walk in” on the day of their hearings; they could get an appointment within two weeks. Those days are over.

On the LA County Bar Association, Family Law List serve, attorneys complained about the long waits for mediation appointments. Attorneys and parents had to wait several months, and the mediators are under tremendous pressure to see four cases a day. Even when they are near reaching agreements, it is rare they have appointment openings to schedule return appointments. Since hearings are delayed because of the long wait times, the status quo trumps “best interests” when children are involved. The supervising judge announced the agreement rate had dropped to around 50%. While it’s true the cases have become more difficult to resolve because of increased substance abuse and domestic violence, the resources for mediation have been reduced. The agreement rate had been as high as two-thirds to three-quarters of cases.

Attorneys are increasingly referring clients to see private mediators because it is so difficult to get an appointment for mediation without long waits. Lawyers are relying on private mediators when the time is short and there parties can afford them. Even when an agreement is not reached, the courts have accepted letters from the mediator that the parties have met for mediation, thus meeting the requirements of Family Code §3170. The use of private mediators will continue to increase.

THE MEDIATION PROCESS GIVES PEOPLE A CHANCE TO TELL THEIR STORIES

When California passed the first no-fault divorce law in the nation, the reasons for the divorce were no longer relevant. Seasoned practitioners know the importance of telling the “story” of the divorce. It is by listening to the most profound issues in a changing or ending relationship that healing and resolution begin. The deepest feelings of hurt, abandonment, anger, revenge and ambivalence need to be expressed and understood. It is the experienced mental health professional who can do this in the context of mediation of custody and visitation disputes.

The attorney who attempts to dismiss feelings of a parent in order to quickly resolve the legal issues may experience an impasse. An inexperienced attorney once made a serious error in a conference when she said “Don’t talk about what happened. The past is not important; we need to talk about the future.” It’s true that family law orders focus on what will occur in the future, but to dismiss the past as not being important is a disservice to clients and doesn’t recognize important parts of our lives. Mental health mediators are often able to help parents express important feelings as a prelude to resolving the parenting plan issues.

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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