People often complain that they don’t know how to properly vet attorneys. One very effective way is assessing their views on mediation, when they use it, and the mediators they tend to use.
I say this because empirical findings exist regarding “the effects of mediator actions on mediation outcomes.” A Report of the Task Force on Research on Mediator Techniqueswas published by the American Bar Association Section of Dispute Resolution in June 2017.
This article specifically focuses on divorce and other aspects of family law.
Immediately prior to writing this article, I Googled the panel members who mediate family law matters in California for ADR Services, Inc., JAMS, and Judicate West, three of the largest mediation panels in my jurisdiction.
Eighteen panel members with ADR Services, Inc. handle family law matters, only two of whom are not retired judicial officers. Based upon the information in their profiles, at most, three of the retired judicial officers and one of the attorneys have received more than basic mediation training, which is typically 40-hours. Of those, only one is located in Southern California and none in Los Angeles County.
Thirty-three panel members with JAMS handle family law matters, only six of whom are not retired judicial officers. Based upon the information in their profiles, at most, two of the retired judicial officers and four of the attorneys have received more than basic mediation training, each of whom is located in Northern California.
Eight panel members with Judicate West handle family law matters, only one of whom is not a retired judicial officer. Based upon the information in their profiles, at most, one of the retired judicial officers and the attorney have received more than basic mediation training. Of those, only one is located in Southern California and none in Los Angeles County.
Since mediation is generally unregulated, anyone can call themselves a mediator and any process involving a mediator is called mediation. As such, the ABA Report provides as follows:
“The Task Force cast a wide net to identify studies involving any non-binding process in which a third party helped disputants try to resolve any type of conflict.”
In other words, there’s a big difference between a “mediator”, even an “experienced mediator”, and a “well trained and experienced mediator.”
I’m going to ask a question I’ve asked in prior articles: “Do judges become ‘well trained and experienced mediators’ by virtue of being judges?”
There is no requirement that family law attorneys have any training in Alternative Dispute Resolution. In fact, family law specialists, Certified by the California State Bar and most everywhere else, are not required to have any educational hours or training in Alternative Dispute Resolution. Mediation is unregulated in most places, including California. Thus, a person can practice as a ‘mediator’ without ever having received any formal training.
A person claiming to be a mediator even though they had no formal mediation training is the same as a parent saying that they can teach parenting skills because they happened to have raised children of their own. The fact that someone raised their own children does not mean that they had good parenting skills and that they should be teaching others how to parent.
In evaluative mediation, matters are resolved by virtue of having a ‘neutral’ evaluate legal positions and point out the strengths and weaknesses of each side’s case. In essence, the ‘mediator’ is putting on a Judge’s robe because the ‘mediator’ is helping the parties to resolve the case by pointing out what they believe will happen if the matter were to proceed to court. Thus, it creates winners and losers, just as occurs in matters that proceed to court.”
Consider the following statement I made in How To Select The Best Mediator Is a Must Read for Everyone:
“The vast majority of family law attorneys use retired judicial officers and the like to mediate family law cases and these are not the skills that judges possess by virtue of having decided cases in a courtroom.”
This certainly explains why ADR Services, Inc., JAMS, and Judicate West are so saturated with retired judges and very few of the mediators on those panels have received much, if any, formal mediation training.
Now, let’s discuss this in relation to the information set forth in the Report of the ABA Section of Dispute Resolution Task Force on Research on Mediator Techniques.
One finding was as follows:
“Pressing or directive actions have the potential to increase settlement, but they also have the potential for negative effects on settlement and related outcomes, and especially on disputants’ perceptions and relationships[, including] more post-mediation adversarial motions being filed….
All studies included in this section examined mediator styles or actions that involved the mediator pressuring the parties in one or more ways. Some of the studies also included in their measure of ‘pressing’ or ‘directive’ styles one or more substantive or ‘evaluative’ actions, such as analyzing the strengths and weaknesses of the case or suggesting a particular settlement.”
So, if you will have an ongoing relationship of some sort with each other through children, or ongoing court jurisdiction after addressing the issues at hand because the children are minors or spousal support is modifiable (which it is absent agreement otherwise), the use of such mediators has some serious potentially negative consequences. Why then, would your lawyer want to use such mediators? That’s an excellent question and the reason I suggest that it’s an excellent question for vetting attorneys.
Another finding was as follows:
“Caucuses during mediation appear to have the potential to increase settlement in the labor-management context, and have the potential for negative effects on disputants’ relationships and perceptions. Disputants who spent more time in caucus were more likely to return to court to file an enforcement action.”
Caucuses occur when the mediator meets with one side at a time. It is also known as “shuttle mediation,” meaning that the parties and their attorneys are kept in separate rooms and the mediator shuttles back and forth in an effort to settle the case.
Those who are not “well trained and experienced mediators” tend to engage in “shuttle mediation,” and this includes most retired judicial officers. Meanwhile, consider the following comment expressed by my colleague and friend Rande S. Sotomayor in her article titled Transforming a Mediation into a Positive Outcome for All Parties which was published in the July/August 2017 edition of Los Angeles Lawyer Magazine:
“As usual, the attorneys initially objected to a joint opening session. It typically is an uphill battle with counsel and clients who think a joint session will exacerbate the dispute, prompt a blow-up, or reveal facts they would rather save for trial.”
Rande’s a “well trained and experienced mediator” and therefore understands the importance of joint sessions in mediation. The same can’t be said of all mediators, regardless of their level of experience.