There is a common misconception that divorce mediators lack the power to impose a resolution of disputed issues between parties to the mediation. While it is true that mediators do not possess the same authority as judges to issue orders and/or compel parties to perform certain actions, it is not true that mediators are powerless and can’t maintain control over the parties during the mediation process. An experienced, skilled mediator who has a significant background in family law litigation and mediation can, in many circumstances, have a greater influence over the parties and the decisions made in mediation than a judge assigned to family law caseload at the courthouse. Specifically, people contemplating whether or not to use mediation should know that most (but not all) judges at the courthouse bring with them little to no family law experience prior to their assignment to the family law panel. In a lot of counties in California, a family law assignment is viewed as a lower prestige assignment. This means that the assignments go to judges who have just been appointed or elected to the bench who have the lowest seniority. Most recently appointed or elected judges come from local district attorneys or public defenders offices and have not practiced family law before taking the bench. In many counties, a family law assignment lasts only 2-3 years, with the judge cycling out to a new assignment at their first opportunity, leaving their vacancy to be filled once again by an inexperienced/newly appointed/elected judge. The inexperience of the judge, who lacks knowledge of the complex family law system and has little to no reference point on how to handle complex family law issues, often leads to orders/results that are inconsistent at best and catastrophic for families at worst.
In addition to the lack of experience, judges often lack the time necessary to properly address the issues in a given case. Whether it’s the lack of court time to allow for the proper development of testimony and evidence or a lack of time to properly research the laws applicable to the case and make sound decisions based on the law, there is simply not enough hours in the day for most judges to handle their heavy case loads.
Most experienced divorce and family law mediators have lengthy backgrounds in family law litigation and mediation. With many years of experience and knowledge gathered handling complex family law issues, an experienced divorce and family law mediator will be able to control the mediation process and the ultimate decisions made by the parties by:
- Identifying all of the key issues that need to be addressed in family’s particular situation at the outset of mediation.
- Asking the correct questions from the beginning in order to properly identify those key issues.
- Understanding both sides of the key issues, the strengths and weaknesses, and being able to explain them to the parties.
- Understanding the law that is applicable to the case and properly explaining how the law applies to both parties’ issues. This often involves taking the necessary time to research the law and report back to the parties on how it applies to their case.
- Applying all of the facts and laws to each party’s unique situation so as to make sure each party is making informed and thought-out decisions.
Thus, while a mediator may not have the power to force an order upon someone, they maintain a significant amount of power over the entire mediation process based upon their skill and experience in handling complex family law issues. And they can certainly provide the parties with an anticipated outcome in court should they either refuse to settle or contemplate turning to litigation. A skilled mediator will often say, “Sure, you can go to court, but here are the risks in doing so, here’s what a judge would likely consider ordering, and here’s what your costs and timeframe will likely be. While you may ultimately “win” on an issue, it could end up being a very hollow victory since it will likely cost you many thousands of dollars to do so in court and take more than a year of court time just to get to a hearing and final order.” This often leads the parties to really consider their options and frequently results in a fair settlement being reached in mediation.