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What are the Benefits of Divorce Mediation? Child Custody Issues in California Divorce

June 20, 2013
Click the photo to visit David's website

Click the photo to visit David’s website

This is the sixth in a multi-part series by A Better Divorce member David Kuroda, LCSW Division Chief, Mediation and Conciliation Service Superior Court of Los Angeles (ret.) titled CHILD CUSTODY ISSUES: AVOIDING TRIAL, RESPONSES TO THE UNPRECEDENTED REDUCTIONS IN COURT FUNDING – A BILLIONAIRE CHOOSES COLLABORATIVE DIVORCE.  The article is one of 16 in the family reference materials of The Family Law Symposium, the major family law event for attorneys in So. California.  Click here to read through more articles by David.

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

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.

David 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, he was responsible for the district courts, the PACT and Contemnors’ Programs, Divorce Seminars, and Visitation Monitors. Under his leadership, the service set high standards for the mediation service and other innovative programs serving children and families of divorce.

He has served on numerous committees with the Judicial Council, Los Angeles County Bar Executive Committee, Family Law Section, and has collaborated on numerous programs with the bar associations of the South Bay, Beverly Hills, San Fernando Valley, and Long Beach. He’s the past vice-president of A Better Divorce: A group of collaborative professionals; he also serves as vice-president of the California Social Welfare Archives., on he advisory board of the Los Angeles Collaborative Family Law Association, and was honored with the Lifetime Achievement Award by the National Association of Social Workers (NASW) California Chapter and with the George Nickel Award by the California Social Welfare Archives, USC.

In addition to directing the program, he has personally provided mediation services to over 7,000 families from the working poor to the wealthy and famous, including high profile cases and movie producers. Virtually all parents, whatever their backgrounds, love their children, and with some guidance, have been able to work together, even after divorce. Mr. Kuroda has provided training for graduate students from USC, and has taught professionals child custody mediation.

Always consult a professional in your area.

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