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What is Mediation?

by Michael Tobriner

What is Mediation?

Mediation is a method in which parties negotiate resolutions of family law problems by working with a trained neutral professional, usually a lawyer, known as a mediator. Mediation takes place entirely out of court and without litigation. In many mediations parties meet directly with the mediator in a three-person setting without attorneys present. In other mediations the parties are each represented by counsel, and the parties and counsel all meet together with the mediator. The task of the mediator is to help the parties (and attorneys, if they participate) identify issues and goals, develop information, create options for resolution, and find mutually-acceptable agreement.

Mediation is:

  • Non-adversarial. Like collaborative practice, mediation is a serious, good-faith effort to find productive, useful solutions to family law issues. While disagreements and differing viewpoints are expected, hostility, attack, belligerence, and bad faith are unacceptable.
  • Voluntary. Parties choose mediation only if they want it. No one, including a court or judge, can compel a party to participate in mediation.
  • Confidential. Under California law every statement made or document used in mediation is completely confidential. Nothing a party says or does in mediation can be used in any subsequent legal proceeding.
  • Open and transparent. Parties produce all information voluntarily. Nothing is concealed or withheld.
  • Participatory. Successful mediation requires each party to participate actively and fully in the negotiations. Each party must be able to identify and assert his or her interests firmly and clearly.