What form of ADR is Right for You? (Part One of a Series)


Mediation can be a very effective tool to resolve your legal dispute quickly and inexpensively whether it be around a family law issue, a civil matter, a probate matter or any legal dispute. Even before a case is filed, you can work with a mediator to resolve your dispute without court involvement.  Or, a judge might order you to attend mediation after a case has been filed. Either way, this alternative to litigation allows the parties to craft their own resolution to a dispute.

What is Mediation?

Mediation is a form of “Alternative” or “Appropriate” Dispute Resolution, more commonly known as “ADR”.  ADR comes in many forms such as private judging, parenting coordination, neutral evaluation, arbitration, and of course mediation.  Mediation gives a voice to the parties involved in a dispute in the settlement of their matter. It allows the parties an opportunity to be heard in a way that you usually cannot get in court and the litigation process.  In mediation, the parties can be in the same room together or separated in what we call caucus or shuttle mediation. Attorneys may be present or not. The mediator will work with the parties and their attorneys, if present and/or available, and facilitate a mutually acceptable resolution to their dispute.

When Can You Use Mediation?

Parties and courts use mediation as an alternative to traditional litigation.  In family law, the court will refer the parties to Family Court Services mediation, a court run process, to resolve contested custody and visitation issues.  Parties can also choose to settle any disputed issue, or the entirety of their family law matter, through private mediation.  If a case is filed with the court in other areas of law, the court will usually refer the parties to mediation for resolution of the case. However, you do not need to have a case filed with the court to opt for mediation. Mediation takes parties out of the courtroom and gives them the space they need to resolve their disagreements with the help of the mediator. Sometimes, it can replace traditional court processes entirely and cut short time-consuming and expensive litigation, avoid trial, and save the parties money on attorney fees.

Family Law

Mediation can be used at any point along the way in a family law matter. Because family law cases involve so many issues, parties can choose to mediate only distinct aspects of their case.  Sometimes as parties reach agreements on the more difficult issues, the other issues can be agreed upon with ease.  In fact, often in family law cases, parties already have agreements on some things but not on all aspects of their case. Even while your case is pending in court, you can use mediation to avoid having to go to trial. As children age and circumstances change, parents may avail themselves of the mediation process to resolve custody and visitation even after their divorce or other family law matter is over. Others use mediation to resolve disagreements that arise in how their judgments should be interpreted or carried out. Mediation can be used to address:

  • Child related issues such as:
    • Initial custody and visitation orders
    • Initial child support orders
    • School enrollment
    • Disagreements over medical treatments for the children
    • Post-judgment modifications to custody, visitation or support orders
  • Spousal Support
  • Property distribution in divorce

Civil Justice for Victims of Crime

Victims seeking justice in the civil court system can also use mediation to avoid litigation, reduce costs, and possibly resolve their cases quicker. For victims of crimes, mediation can provide an opportunity to reach non-monetary settlements that otherwise would not be an available outcome at trial. Mediation can help a survivor avoid the re-traumatization of having to testify to the abuse in front of Judge and/or a jury. For example, a victim of domestic violence or sexual assault may seek an apology or explanation from their perpetrator. Or, a victim could seek policy or systematic changes from an institution that contributed to their harm.

When desired mediation outcomes are more than money, it is important that the survivor chose a trauma informed mediator. The mediator must be able to perform the mediation in a way that recognizes the dynamics of abuse, respects the healing process of the survivor, and values the non-monetary relief requested by the victim.  

Other Areas of Law

Mediation, as a form of conflict resolution, is available to resolve most legal conflicts that might otherwise go through the courts or any conflict that is pending in the court. Another area of law that is ripe for resolution via mediation are conflicts that arise under the probate code.  We typically see these types of cases arise when there is a dispute as to the administration of a trust or the probate of a will. In addition to family members suffering the plethora of emotions that come up after the loss of a loved one, there are a whole host of emotions that are triggered in families as the wishes of the decedent are made known causing some to feel left out or undervalued.  Disputes around the distribution of a family member’s, or non-family member’s, estate can cause riffs among families that may be irreparable.  The mediation process allows for the possibility of healing that the litigation of these disputes does not, and cannot, consider. A skilled mediator who understands both family and relationship dynamics and the law can facilitate a resolution top these types of disputes leaving relationships intact.

What Mediation Looks Like

For most, the idea to mediate comes from one of the parties, or their attorney’s suggestion. The parties can outline the issues to be mediated or use the mediator to outline which issues will be mediated.

On the day of your mediation, you should expect to be welcomed to the facility, which may be a lawyer’s office, and made comfortable. These days it is more and more common for mediations to take place via video conference.  The same expectations of being welcomed and made to feel comfortable still apply. Sometimes, the parties’ respective attorneys will also be part of the mediation.  The mediator will explain the process and any limits you or the court have set, and then will help you identify the issues and possible solutions to those issues. You should expect to be given an opportunity to explain how you think the case should be resolved and why, and to listen respectfully as the other party does the same. The mediator may meet with everyone at once, or “caucus” with each side individually. Some mediations last for one session – either a half-day or a full day.  Some meditations (most typical in family law) require several sessions. Certainly, where restraining orders or issues of abuse are present, the mediator must provide appropriate and safe accommodations for the victim.  Ultimately, the goal is to work through each of the issues and find a solution that everyone can live with (even if it isn’t what you expected or would have preferred).

When Mediation Works Best

Most lawsuits resolve without ever having to go to trial. In many instances, that resolution comes with the help of a mediator. Your mediator should be a trained, independent third party, who helps both parties explain their priorities and needs, weigh their choices, and work through their differences. 

Keep the Focus on Practical Solutions for Recovery

While emotions are a part of any dispute, and in disputes involving family or abuse are even more amplified, you want to make sure it is not just your emotions that is driving your position. To make mediation a success, it is helpful to keep your attention on what you need to be made whole, even if it’s not what you think you “should” be getting or what is “right” or “fair.”  Think about what will happen after the order is entered – what do you need to move forward, what would you accept to move forward, how durable is your agreement.  For example, if your agreement is about custody and visitation of your young children, is there a provision that allows for a mechanism for the two of you to resolve future disputes. Your mediator should be focused on moving the case forward to resolution and how the parties can accomplish their goals and priorities. By focusing on the future, you will end up with a settlement that works.

Special Considerations Where abuse is Involved

If you are a victim of domestic violence or sexual assault, or a spouse in an emotionally charged divorce, you may have justified and appropriate emotions wrapped up in the resolution of your case. You may need to utilize the expertise of a mental health professional, either involved directly in the mediation or as a support outside of mediation. An experienced and trauma informed mediator will make this suggestion.  They will also understand these dynamics and can create an environment where your emotions are acknowledged and do not impede the resolution of your case.

When Mediation Doesn’t Work

Mediation can be great for resolving civil and divorce disputes, but it does not work in every case. Domestic violence, trauma, dominance and control issues, and other power imbalances can turn a tool for conflict resolution into a traumatic experience. Many mediations will start with individual one-on-one domestic violence screening between each party and the mediator. This screening gives you the opportunity to explain what you need to feel safe and supported, and for the mediator to get a sense of whether you will be able to voice your opinions, needs and wants in the mediation. If you have been the victim of verbal, emotional, or physical abuse, or if you have trouble saying no to your partner, be sure to tell your mediator up front, so that she or he can respond appropriately to protect you and make sure mediation is right for you.

Mediation also doesn’t work when the parties are simply too far apart on some issues. If either party has decided to demand his or her “day in court” or takes an all-or-nothing approach, mediation will fail unless that party starts to compromise. Remember that most successful mediations require both parties to give a little on issues that may not be their top priorities. When one party brings ultimatums to the negotiation table, it’s a good chance that mediation won’t work.

Sometimes when mediation doesn’t work it is because the parties are working with someone without the skills and training to help them come to a resolution. The way a mediator facilitates the discussion and handles the needs and emotions of each party can mean the difference between a mediation that works, and a case that is going to trial.  And, if mediation does not work, there are still other forms of ADR that may be appropriate for your case.

At ADZ Law, LLP, we understand the value, and limits, to mediation. We provide emotionally competent, trauma informed mediation.  We also have attorneys who can guide you through the process as advice counsel either participating in the mediation or giving you advice and counsel outside the mediation.  If you are in the San Francisco Bay area of California, we invite you to contact ADZ Law, LLP to schedule a consultation to learn more about our team, and how we can help you.