What you Need to Know about Mediation

Sharon A. Bryan, Esquire
Moore, Bryan, Schroff & Inoue LLP
Torrance, California

What a Mediator Does and Doesn’t Do:

1. You need a mediator who practices family law, preferably a certified specialist in family law.  You need a consulting attorney, the reasons for which will become clear below.
2. The mediator will not advise you of the law during mediation.
3. The mediator may not know the law.  People with no college degree, no law degree, no formal training and no knowledge of family law can hold themselves out as mediators.  There are no standards and anyone can advertise himself or herself as a mediator.
4. The mediator does not represent or act as an advocate for either party.
5. The mediator’s job is to help the parties reach an agreement.  That agreement may or may not reflect what a court would do.
6. The mediator will not tell you if you are reaching a severely disadvantageous settlement.  For example, if you agree to 50 percent visitation for the children with the other parent, even though the other parent really has the children only ten percent of the time, don’t expect the mediator to advise you that this will reduce your child support.
7. Everything said in mediation is private and cannot later be used to set aside an agreement.  If you make an agreement based on what is said in mediation, and you later want to set it aside on grounds of lack of full disclosure, fraud, breach of fiduciary duty, or outright lying, you cannot recite anything said in mediation to prove your point so how can you show fraud when it occurred in private?  Documents used in mediation, however, can be presented because they are evidence.
8. The mediator’s job is not to advise the parties of the law and effect an equitable settlement thereunder.  The mediator’s job is to help the parties reach their own agreement.

Why You Need a Consulting Attorney in Mediation to Protect Your Rights:

A consulting attorney who practices family law will know the law and advise you of what you are entitled to and what the court might do.  The consulting attorney will:

1. Help you set an agenda go to mediation with a reasonable set of positions on the issues.
2. Provide you with the pros and cons of possible compromises that have been proposed in mediation.
3. Review draft agreements, propose revisions, and tell you what legal rights you are giving up and how you are benefitting from the proposal.
4. Review the proposed judgment and propose revisions.
5. Advise you of the law and what an equitable settlement under the law would be:  what you’re giving up and what you’re getting.
6. Represent only you and your best interests and ensure that what you agree to is equitable in the shadow of the law.
7. See that you do not agree to a settlement blindly and in ignorance of consequences.