By, Donald B. Cripe, J.D., AAA, AHLA, ACR, SCMA;
Award Winning Mediator and C.A.M.S. panelist
It’s been months, maybe years, since you started your divorce. It seems that every time you go to court the hearing is postponed or in the language of the law, continued. Nothing was accomplished and even if the delay wasn’t your fault, you still had to take time off work and if you have an attorney, you will receive a bill for the appearance. Our litigation system is not designed to facilitate communication. Traditionally, litigants and lawyers have the idea that talking about the issues with the opposition will somehow damage one’s case. Litigation begins–communication stops.
You and your opponent, whether in family law or otherwise, are becoming very frustrated with the delays and unanswered questions. This message is to let you know that if you choose your divorce can be completed or your civil lawsuit can go to judgment quickly, cleanly, under your control and may even preserve important elements of the relationship (business or other) between the parties. California Arbitration & Mediation Services (C.A.M.S.) can help you in this endeavor quickly and affordably. The process is called “mediation.”
It is hard to comprehend after a long time in litigation it is possible for you and your opponent to work together to come to a conclusion that is something you can all live with. Mediation is a system of facilitated negotiation. Your C.A.M.S. mediator knows how to resolve your case, no matter how complicated or difficult. Here is how you can proceed: first, click on the link staging.violet-park.flywheelsites.com and review the information available about the C.A.M.S. panel. You will find information not only about the individual mediator but ample information regarding the process. Next, once you have selected the mediator to help you with your case, contact the mediator through his or her email address or telephone number on the website. Your C.A.M.S. panelist will assist you with the engagement process.
When you engage the panelist, she will send you all the information you will need to get started. Ordinarily, you will be required to pay a minimum fee deposit and complete basic information forms to help the C.A.M.S. panelist start your case. The C.A.M.S. panelist may wish to meet with the parties initially to get acquainted and to gather some information about your case. In family law cases (divorce) it is most common that the C.A.M.S. panelist will want to meet the parties together. However, that is subject to the desires of the parties. In a civil lawsuit such as personal injury or real estate disputes, your C.A.M.S. panelist will most likely ask you to send him the information about your case in a format we refer to as a “brief.” However, since mediation is an informal, out-of-court, process such information can be provided by email or in letter format.
The next element will comprise the mediation process. If the parties are meeting together we call this a “joint session.” If the parties wish to meet separately, those meetings are referred to as “caucus.” The biggest difference you will find between your C.A.M.S. panelist and anything you have experienced in the court or litigation system is that the mediator will focus upon you and your problems rather than court scheduling or other formal court processes. In mediation you can tell your mediator anything you wish about your case. Everyone is heard as completely as the party wishes. In mediation we do not worry about evidentiary constrictions. The focus is upon information gathering to settle your case. During your mediation, you and your opponent will be the most overriding concern of the mediator.
Another thing you will notice about mediation is that your C.A.M.S. panelist will instruct you upon one of the most essential components of mediation: confidentiality. As you may have seen in your experience in a courtroom, everyone’s “dirty laundry” is displayed in front of dozens of strangers. Everything that is said in a courtroom becomes public record. All anyone who might be interested needs to do is contact the court reporter for a transcript. That could include personal inquiries, credit inquiries or other uninvited intruders. Conversely, during mediation everything that is said or done remains confidential to the extent the parties desire. The mediator cannot discuss your case with anyone outside of mediation and cannot be called as a witness (except in criminal proceedings or a couple of other exceptions do not apply usually). So whatever you reveal to the mediator stays within the mediation context. Also, if the parties desire to meet in separate caucus the mediator is bound to keep whatever is revealed to him by one party confidential as to the other unless she has permission to reveal the discussion. The purpose behind this confidentiality is to encourage the parties to be relaxed and able to communicate without fear of negative consequences. The mediation confidentiality begins on the moment the mediator is engaged and ends on a time which may include the completion of your final agreement, the mediator declaring that the mediation is over or if the parties abandon the mediation at the end of 10 days after the last mediation session. The 10 day termination period may be waived since often delays of that long or more may be necessary for the parties to gather information needed for the parties to complete the mediation.
During this stage of the process your C.A.M.S. panelist will work with all parties toward compromise and agreement on the issues to get your case settled as quickly as possible. No one is forced to do anything. Whatever agreement results from this process will reflect the agreement of the parties and not the desire of a judicial officer, attorneys or the mediator. Every decision made in a mediation is solely that of the party. Though the mediator cannot give the parties legal advice, he may indicate what he believes might happen in a certain circumstance in a courtroom. She may tell you what the valuation of a particular issue or case might be (this is sometimes called an evaluative approach). Your C.A.M.S. panelist may not be comfortable doing this but it is something we can do when asked. Since the mediator can make no orders and should coerce no party, the results, whether you settle or not, will be entirely up to you. Usually if a settlement is not accomplished it is because one or both parties have decided that they do not want to do what is necessary to resolve their case. Occasionally, a mediator will misstep and might impede the settlement process. That problem is generally due to the inexperience of the mediator. All C.A.M.S. panelists have extensive training and experience resolving cases of all types so we seldom have this issue arise in our mediations.
Once the parties agree on the most important terms in their case, your C.A.M.S. panelist will often assist you in preparing a settlement document. That, however, is also up to you. Though it is part of the mediation, the actual terms of your agreement must be yours, alone. Mediation also affords the parties far more options for settlement than are available in the very rigid litigation process. The mediator will not substitute his or her thoughts or determination in place of yours. The final preparation may take place in your presence or the mediator may complete your project outside of your meeting and submit it for your review.
Once the parties have signed any agreement during the mediation process that agreement becomes binding upon the parties (there are some “magic words” that your C.A.M.S. panelist must include within the language). What that means is that if either party fails to fulfill her obligation under that agreement, the other party may have the agreement turned into a court order through a simple request. That is also true of the final mediated agreement. That agreement will contain specific enforcement language. Once it is signed it is virtually as good as an order. Unless the mediation involves only one issue, the mediated agreement will typically be turned into a judgment. In civil cases the case is typically dismissed and the court retains jurisdiction for enforcement. In family law cases the mediated agreement most often is turned into a final judgment on the issues mediated.
Statistically, mediated agreements are almost always more successful than judgments issued after a trial. In family cases parties to a mediated agreement are less likely to go back into court to ask for modifications. Your C.A.M.S. panelist will build into your agreement provisions that if there is a Post Judgment dispute the parties must mediate that dispute before returning to court. In such a case, if one party refuses to mediate a disputed issue, that party may be forced to pay the other party’s attorney’s fees and costs following a court hearing. The parties are less likely to return to court or to file an appeal after a mediated settlement as opposed to suffering the case through judgment.
Mediation provides the parties to disputes a faster, more efficient and far more affordable means to a permanent resolution.
Every case is different so predicting how long your case may take without knowing the facts, would be impossible. However, we can say with certainty that most civil cases are resolved on the day of mediation with the judgment or dismissal being filed shortly thereafter. In more than half of family law cases the mediation requires one or two sessions and the mediation can be completed and judgment submitted to the Court within two weeks without the parties having to appear in a courtroom. The time advantage, alone, is worth the effort and when one couples the time advantage to the factor of complete personal control of the outcome of your case renders mediation far more desirable in any litigation. Therefore, even if you are in the middle of litigating your family or civil case, C.A.M.S. enthusiastically invites you to investigate this alternative process toward resolution and finality. All you need to do is contact C.A.M.S. make your arrangements. If you are represented by an attorney (remember, this is your case, not the Attorney’s) contact your attorney and instruct him or her to call C.A.M.S. to set up a mediation before anything else is done in your case.