How Family Law Attorneys Tend to Think, Part V

06/04/2015 09:51 am ET | Updated Jun 04, 2016

On May 29, 2013, the Huffington Post published my article titled "What Does Mediation Really Mean?" In that article, I explained how "those involved in the legal system have created confusion in the marketplace regarding the concept of mediation itself." That article ended as follows: "If those involved in the legal system don't know what mediation is supposed to be, how can we expect the general public to grasp the concept?"

In California, when parents are involved in a child custody dispute, they are required to attend "conciliation court" before a judge will rule on the case. "Conciliation court" is often referred to as "mandatory mediation." Among other things, in order to schedule a "mediation" appointment with the conciliation court, "you are required to have a Family Law case number. You must have a pending court hearing or you must be in the process of filing for a hearing, and have a child custody/visitation dispute." In other words, conciliation court is mandatory post-filing "mediation," which takes place after actual litigation has commenced because of the hearing requirement.

Keep in mind the type of information typically included in Requests for Orders and never forget that "the pen is mightier than the sword." Therefore, while conciliation court is "free," there is a significant cost both financially and emotionally in filing a Request for Order with the court in order to access that "free mediation."

The Family Law Section of the Los Angeles County Bar Association also established a Daily Settlement Officer ("DSO") program. Many members of that section graciously volunteer their services to act as Daily Settlement Officers on a regular basis. "The DSO program provides the Central District Family Law courts with settlement officers who are family lawyers and forensic accountants. The settlement officers must be State Bar members, LACBA members, and either a Certified Family Law Specialist or have been practicing Family Law in the last five years. CPA settlement officers must be a licensed CPA, an active member of the California Society of CPAs, and hold a Certified in Financial Forensics credential, or have practiced accounting, primarily in the area of family law forensic accounting, during the past five years."

Immediately prior to a scheduled court hearing, the family law judge may send the case to the office of the Daily Settlement Officer, or the attorneys may make such a request. As with "conciliation court," this "mediation" is only available post-filing. Furthermore, since the matter is otherwise ready for the judge to make a ruling, the pre-hearing litigation has been completed. Thus, although the DSO program is "free," is it really?

As my family law attorney and mediator colleague, Leslie K. Howell, said: "If parties mediate their matters from the beginning, they wouldn't necessarily need to pay retainer fees to litigate their cases. It usually costs far less for a couple to mediate their case than pay and replenish 2 retainer fees. Therefore, if parties can pay for and replenish their retainer fees to their attorneys, then they can afford a reasonable mediation. In fact, clients who are not wealthy can't afford not to mediate."

In fact, the following is a quote from the Superior Court of California, County of San Mateo:

No. But both the California Rules of Court and the Family Law Act strongly encourage ADR. The Family Law Department of the San Mateo County Superior Court recognizes that formal litigation is expensive and time consuming. That is why the court supports the use of ADR at the earliest possible time. Section 5.5 of San Mateo County's Local Rules sets forth the court's policy on ADR. The court does require that both parties receive information about alternatives to going to court and provides a local form called 'Notice of ADR.'"

Unfortunately, there seems to be a great deal of confusion as to what litigation entails. "Litigation law refers to the rules and practices involved in resolving disputes in the court system. The term is often associated with tort cases, but litigation can come about in all kinds of cases, from contested divorces, to eviction proceedings. Likewise, most people think of litigation as synonymous with trial work, but the litigation process begins long before the first witness is called to testify. In fact, the vast majority of litigated cases never reach the inside of a courtroom."

"Litigation is the most traditional form of dispute resolution and involves the use of the courts. It is initiated by filing a lawsuit in a court. By definition, litigation is an adversarial process. How often does litigation improve interpersonal relations? Unfortunately, the answer to that question is never.

Somehow, many family law attorneys have convinced themselves that they are not litigating unless a judge makes a ruling. In fact, some attorneys actually believe that a matter is not litigated unless it goes to trial. However, pretrial litigation consists of litigation planning, fact investigation, legal research, discovery, pretrial motions, and settlement strategy. In an effort to make it appear as though family law litigation is not a lawsuit, the parties are referred to as Petitioner and Respondent, rather than Plaintiff and Defendant. Nevertheless, the Summons itself states, 'You are being sued.'"

Nevertheless, financial cost is certainly not the only cost involved. As was very clearly pointed out in Litigation Should Come with a Warning, "governments all over the world are well aware that resolving disputes by way of litigation causes a great deal of damage to business, family, and community relationships."

It also bears mentioning that there is absolutely no requirement that the individuals who volunteer their services as Daily Settlement Officers have ever received any mediation training. Is their "mediation" training the fact that they have been handling family law matters for a certain number of years? If so, their "mediation" skills are likely limited to evaluative "mediation." However, the research clearly shows that evaluative "mediation" works best in situations in which there will be no ongoing relationship of some sort. A connection as a result of children, regardless of their age, results in such an ongoing relationship. Therefore, evaluative "mediation" is not ideal in family law matters.

It is not uncommon for family law attorneys to claim that they utilize "mediation" to resolve their cases because some of their matters go before Daily Settlement Officers. While DSOs are often effective in resolving cases, they are not doing so through mediation. In fact, nothing in the description of the DSO program describes it as mediation. This is by no means an attack on the DSO program or on those who generously volunteer their services for that program, which serves a very useful purpose. However, it is not "mediation." Moreover, it is typically evaluative in nature and therefore has very severe limitations for ongoing interpersonal relationships.

Interestingly enough, when family law attorneys do utilize private mediation in an effort to resolve their cases, the vast majority tend to "use retired judicial officers and the like" to do "evaluative mediation." What's more, as I mentioned in the last segment from this series, "many [family law attorneys] do not want what [I am] selling" because it is non-evaluative mediation.

I'm going to say it over and over and over again until my last breath - "Mediation" that is handled as a "settlement conference," but with a "mediator" rather than a judicial officer is not mediation. That distinction has been made in a great many jurisdictions, including Maryland. The State Bar of Maryland has very clearly stated that such "mediation" is NOT mediation.

That being said, nobody (myself included) has ever said that "evaluative mediation" does not have some value. However, it is NOT mediation and this confusion of terminology and the consequences that result leads to confusion in the marketplace.

Distinctions must be made between "mediations" that occur before or after people are forced to file pleadings and declarations with the court and what type of "mediation" is occurring. Bells cannot be unrung. What has been stated in those pleadings and declarations? Such things cannot be taken back, even if the matter is resolved in "conciliation court" or through the DSO program.

Always remember the following: Generally speaking, mediation is unregulated, which means that anyone may call themselves a "mediator" and any process involving a "mediator" is called "mediation."