As an alternative to the adversarial process, family law was one of the first frontiers for mediation. Dwight Golann & Jay Folberg, Mediation: The Roles of Advocate and Neutral 295–96 (2d ed. 2011) [hereinafter Golann]. With the unique mixture of legal issues, extreme emotion, impact on children, and the high potential for physical or emotional abuse, the courts embraced mediation as a way to deal with these sensitive situations and their overflowing dockets. Id. Today, a number of divorces mediate settlement outside of court and almost all states mandate mediation, at minimum, when child custody or visitation is at issue before parties can even enter the courtroom. Id. at 295.
Unlike traditional civil or commercial mediation, divorce mediation differs in a number of ways. First, it can span several weeks, or even months, and parties usually do not separate into caucuses. Id. at 296. Second, because of issues regarding children, mediators tend to be trained in mental health or social work, sessions are future-oriented, and the process is interest-based. Id. Finally, attorneys are usually not present. Id.
It is this last factor that is the focus of this paper. Namely, how can an attorney properly advocate for his client in a mediated family law case when he does not participate in the mediation? After a brief introduction, Part II will give a background overview the mediation process in family law. Part III will give the current state of the law and the mandated family law mediation process in the Ventura County Superior Court. Specifically, I focus on court-provided mediation that the county requires prior to issuing any child custody and visitation order. Part IV will analyze the various strategies for advocating in this peculiar situation and Part VI will conclude.
2. Background & History—Mediation in Family Law
Mediation in family law cases has been praised and criticized for a variety of reasons. Sandra J. Perry, Tanya M. Marcum, & Charles R. Stoner, Stumbling Down the Courthouse Steps: Mediator’s Perceptions of the Stumbling Blocks to Successful Mandated Mediation in Child Custody and Visitation, 11 Pepp. Disp. Resol. L.J. 441, 441–45 (2011). Many believe that it leads to less conflict and more satisfying outcomes. Id. at 442. Others worry about the absence of checks and balances to ensure fairness and results that are in the best interest of the children. Golan, at 305 (quoting Robert A. Baruch Bush & Sally Ganong Pope, Transformative Mediation Principles and Practices in Divorce Mediation, Divorce & Family Mediation 53 (Folberg et. al. eds., 2004)). Some have even criticized new legislation for putting children “squarely in the crosshairs of their parents’ divorce.” Amy Pellman, Robert N. Jacobs, & Dara K. Reiner, A Child-Centered Response to the Elkins Family Law Task Force, 20 Wm. & Mary Bill Rts. J. 81, 83 (2011) [hereinafter Elkins]. In terms of capital, mediation is widely recognized as saving time and money, while reducing hostility and conflict. Golann, supra at 305. Of course, the dynamic changes when mediation is mandated by the courts and adversarial parties are forced to participate in a process that inherently requires cooperation. Doug Marfice, The Mischief of Court-Ordered Mediation, 39 Idaho L. Rev. 57, 59 (2002). Studies are inconclusive in determining whether or not mediation actually leads to better outcomes than litigation. See Perry, at 443.
In family law there are two, sometimes dueling, doctrines. The court is obligated to make decisions that are in “the best interests of the child” as “parens patriae.” Cal. Fam. Code § 3040; Golann, supra at 305–06. Divorce mediations begin with the premise that the parents are best suited to determine what those interests are and the mediator has an ethical responsibility to stay true to parental self-determination. Golann, supra at 306. This, obviously, becomes a problematic when the divorcing parents don’t always act “in the best interests of their children.”
Unless there are high levels of parental conflict or domestic violence “[a] parenting plan that provides joint physical custody, with both parents expected to be more than visiting parents, is significantly associated with higher levels of child satisfaction than a parenting plan under which one parent has sole custody.” Koel, et al., Patterns of Relitigation in the Postdivorce Family, 56 J. Marr. & Fam. 265, 273, tbl. 4 (1994). California Family Law Code requires that courts take into consideration “parents’ backgrounds; history of abuse against the child or the other parent; the habitual use of alcohol or controlled substances; the nature and amount of contact with parents; and the child’s general health, safety, and welfare.” Elkins, at 22. But, trial courts do not have the means to discover this information about the parents appearing in front of them. Id. For example, many do not have access to a child’s educational, medical, or psychological information unless the parent provides it. Elkins, at 23–24. Others do not check a parent’s criminal record or the child’s dependency files prior to making a custody order. Elkins, at 23. Mediators are required to read each parent’s supporting declarations and exhibits but the mediator does not have to hear witnesses or receive outside evidence. Family Law, Ventura Superior Court (Nov. 19, 2012, 2:30 PM). The result is that the mediator is dependent on the parties for information and can lead to a he said-she said battle for truth.
3. Current State of the Law—Ventura County
Ventura County requires mediation in family law cases in two situations. First, parties must attend a “mandatory settlement conference” where they will attempt to settle the entire case. Cal. R. Ventura Sup. Ct. Rule 9.19. Here, parties can avoid litigation all together, but if they do not agree, a trial is held and the court will issue an order on division of property, assets, and debts. Id. Second, the parties must participate in mediation if there are children involved and therefore custody and visitation is at issue. Cal. R. Ventura Sup. Ct. Rule 9.31. It is possible for a divorcing couple to settle their entire case in outside mediation however, if they wish for the court to issue a custody order, then they must participate in mediation. Alternative Methods of Resolving Disputes in Family Law Cases, Ventura Superior Court (last visited Nov. 26, 2012); Cal. R. Ventura Sup. Ct. Rule 9.31. In addition to going through mediation at the outset of the divorce, the parties may repeat the process if they need the court to change the order while the children remain minors. Id.
After attending an orientation, the parents are assigned a mediator known as a Child Custody Recommending Counselor (CCRC). Cal. R. Ventura Sup. Ct. Rule 9.30. There are twelve CCRCs who have master’s degrees in fields like Marriage and Family Therapy or Social Work, but only one has a degree in law. Vince Morda, Supervisor Family Law Facilitator Ventura Country Superior Court (Nov. 26, 2012 11:30 AM). The CCRC will “review the pleadings and documentary evidence in the court file,” if filed within the deadlines. Family Law, Ventura Superior Court (Nov. 19, 2012, 2:30 PM), [hereinafter Vent. Sup. Ct. Rules]. During the mediation, the CCRC gathers information about the issues facing the parties as well as “parenting history, needs of the children, and school and work schedules” from the parties themselves. Id. Children six and older are “customarily” interviewed but generally this is on an as-needed basis. Id. The CCRC may obtain information from “anyone with knowledge about alleged domestic violence” without the parent’s permission, and has “discretion” to check criminal histories. Id. However, any other collateral contacts “may be made when both parents agree.” Id.
The CCRC’s job is to “help parents create a plan that is in the best interests of their child or children” and use a variety of techniques from transformative to directive. Id.; Morda interview. However, if parents are unable to reach an agreement about some or all of the issues, “the CCRC will make a written recommendation about them and give it to the Judge.” Vent. Sup. Ct. Rules. The parties can review the document with their attorneys before signing it. Id. Typically, the judge will approve whatever recommendations the mediator makes if both parties, and their attorneys, sign the agreement. Cal. R. Ventura Sup. Ct. Rule 9.34.
Traditionally, there are a number of strategies an attorney can employ in mediation most of which mirror negotiation strategies. See Michael P. Silver, Mediation and Negotiation: Representing Your Clients 121-27 (2001). However, family mediation is situational so the success of such strategies is highly dependent on reading the opposing party, effectively using the mediator, and timing—something an attorney cannot do from the hallway. Golann, supra at 301 (citing John Haynes, Mediating Divorce: Casebook of Strategies for Successful Family Negotiations 50 (Jossey-Bass, 1989)); Harold Abramson, Problem-Solving Advocacy in Mediations: A Model of Client Representation, 10 Harv. Negot. L. Rev. 103, *113–34 (2005) [hereinafter Abramson]. In addition, parties usually have the option of behaving in a cooperative or competitive manner and the general presumption is that one should match the opposition’s strategy (i.e. can’t be too cooperative or you will be steamrolled by an ultra-competitive opponent). But the requirement in Ventura County that a CCRC ultimately give a recommendation to the court, and which the judge will likely defer to, changes things dramatically. This procedure has the effect of transforming the mediator into a de facto arbitrator who will ultimately pass judgment on the parties themselves and any advice or instruction an advocate gives his client should be offered with this framework in mind.
Know the Mediator.
In traditional mediation parties are often able to choose their mediator and that choice can be a powerful and strategic one. Mediators are people with their own preconceived ideas, ethics, morals, and biases. As much as they may try to prevent it, these things can affect how the mediator perceives your client, his ex, and the case; and much as they may not like to admit it, mediators can have a “reputation” for favoring mothers or fathers.
Mediators also affect a mediation by their chosen style, whether problem-solving, evaluative, directive, or transformative. Abramson, supra at 124. Knowing what style your CCRC employs can help your client prepare for mediation. For example, if the CCRC is problem-solving—facilitates an interest-based mutual agreement—then you can coach your client to be cooperative, candid, and honest about his concerns and desires. If the CCRC is evaluative—assessing a solution based on his own determinations—then you may have to coach your client to be firmer in their demands and less willing to make concessions. One man I interviewed had been to court mediation quite often because his ex-spouse was constantly putting the children at risk (i.e. letting them swim unsupervised, leaving them home alone). Aaron M., interview conducted on Nov. 15, 2012. Names are kept anonymous for confidentiality purposes. He needed a mediator who was more directive and not afraid of teaching his ex-wife what was and was not proper parenting. Ultimately, his situation has improved, even if for the sole reason that his ex-spouse is afraid of getting scolded by the CCRC again. Id. A directive CCRC can also help an attorney educate her own client who may have his mind set on an unrealistic visitation schedule. (For the sake of simplicity, the advocate and CCRC are female and the client is male. These choices are in no way representative of anything and are merely place-holders.)
In Ventura County family law court, parties do not have this option and the court will assign whatever CCRC is available to hear your case. Cal. R. Ventura Sup. Ct. Rule 9.32. If this is not the client’s first rodeo, and has a trusted CCRC, then it’s possible to request the same person. If he doesn’t, then it may take refilling a new Order to Show Cause every six months to address new issues until you get a CCRC that works for your client. With a limited number of CCRC’s that serve the county—12 total—if you work in the county often, it is essential to become familiar with the various CCRC’s backgrounds, tendencies, and styles in order to successfully advocate for your client.
The court requires the CCRC to give a complete recommendation that is in “the best interests of the children” so no matter how facilitative she seems, the CCRC must be evaluative on issues the parents cannot come to agreement on. The client’s demeanor, ability to communicate, and flexible attitude are all considered in making a final recommendation. Therefore, it is prudent for the client to convey these traits while also standing firm on his key issues. He should have child-centered rationale for each demand to show that his number one priority is the health, safety, and welfare of the children rather than his own personal interests.
The Client Meetings.
Divorce is one of the most traumatic life experiences and the system asks parents to go in with a clear head and rationally negotiate a solution when their brains and hearts are likely not operating in a rationale manner. That is a tall order, and one that the advocate should openly acknowledge when preparing the client for mediation. Remember, the advocate will not be there to calm the client down, temper responses, or change the subject when things get heated. By facing that reality head on, your client will be better prepared to recognize and deal with those intense emotions once in the mediation room.
Before mediation is also the time to get your client’s expectations in check. No matter how early you come on to the case, your client has already had a dozen or more friends give him armchair legal advice. The law presumes that both parents are equally able to parent the children, regardless of gender. Cal. Fam. Code § 3040. However, there are still societal biases and while the idea of not seeing his children every day is initially shocking, there are some basic realities that must be discussed when it comes to custody. Perhaps your client is the breadwinner and can’t afford to quit his job and be a stay-at-home father. Perhaps, he frequently travels for work or is on-call and the instability would not be in the children’s best interest. It is important to explore all options and get the client comfortable with a variety of parenting plans. Every other weekend may be a reasonable plan and one the client is comfortable with, but it does not have to be the first offer and he can earn a lot of points with the CCRC for going in with high demands and then demonstrating cooperativeness by “settling” for less.
Even though attorneys are not in the actual mediation, there is still a lot of traditional legal work to be done. CCRN’s read the case file so make sure that your documents are in order, readable, and timely filed as CCRN’s do not have to read declarations or take notice of any attached exhibits if they are not filed within the allotted window. Because the CCRC’s are able, but not required to look into either parent’s criminal history or contact third parties, it is best to collect this information yourself. An affidavit from a therapist or a teacher can be valuable, but there is no guarantee that the CCRC will independently seek it out and the opposing party can block unfavorable information by not agreeing to such collateral contacts. The only thing the CCRC is required to review are the pleadings and documents in the court file, so the mediator may not be willing to do something akin to taking judicial notice of outside facts. The pleadings are also your first chance to frame the issues in a way favorable to your client. If done well, a declaration can also serve as a sort of “cheat sheet” for the client to review before entering the mediation room.
The heavy reliance on the pleadings means the opposition essentially has to put their entire case in the pleadings. This is a great advantage in terms of figuring out the other side’s position and interests. When it comes to the ex-spouse, spend some time with the client trying to figure out how she ticks. There are the obvious stereotypes: the mother wants the kids because it means collecting more money for support; the father wants the kids because it means paying less money for support. You may or may not have to deal with these stereotypes, but they exist for a reason—because custody is inextricably tied to the financials of divorce—and therefore, they are easy for the opposition to argue and manipulate even if false. The CCRC should be cognizant of these tactics, but it is still best for the client to rebut those presumptions at the outset. This is where the faming of issues and interests can have a big impact. Ultimately, the mediator wants to know that the parent truly has the child’s best interests as heart and will conduct themselves accordingly once they are outside of the mediation room, so framing every demand or concession around what is best for the children goes a long way in establishing credibility.
Once the Mediation Begins.
Mediation lacks the beneficial checks and balances that have developed over time to ensure fairness in the traditional adversarial system so the party that is most knowledgeable, powerful, or less emotional can be at an advantage. Golann, supra at 304. Coach your client to stay calm. If he comes across as the reasonable one then the CCRC is more likely to view his interests as reasonable as well. In joint session, your client should have an opening statement ready which outlines his major concerns and he should be able to deliver it and then remain silent while the other side takes her turn. If the other party takes this as an opportunity to vent, the client must resist the urge to interrupt as valuable information will often come pouring out.
At this point the only chance for communication is during breaks or when the CCRC is caucusing with the other party. If the meditation is contentious, during these breaks it is important to get a gage on your client’s emotional state and rein him in if necessary. Once he is calm, this is a good time to go over the plan and evaluate if it is working. Is the CCRC reacting well to how he is framing the issues and his interests? Is the other party being defensive, adversarial, or cooperative? Depending on the answers to these questions you may have to adjust your strategy. Reprioritize his interests based on new information he’s garnered from the opposition. If there are certain issues he feels he can win on, consider the concessions he’s willing to make on other issues and consider them in light of the favor those concession may garner him from the CCRC and the opposition. Hopefully you will have prepared your client enough so that you can trust his assessment of the situation, because it’s really all you’ve got.
The Final Moments.
Finally, after several hours, the parties will exit the mediation room. Depending on how things went they will have a recommendation which they completely agree upon, one entirely created by the CCRC, or something in between. Regardless of the result, the advocate must read through the final agreement in detail with the client. The advocate must be prepared to object to whatever portions the client is not comfortable with and have arguments at the ready. If necessary, the CCRC will be called to testify as to the recommendation, so the more information the attorney has about the process unfolded, the better able she will be to advocate in the court room.
Court mandated mediation, such as that required in Ventura Family Law Court, is not a typical mediation and advocates should develop practices for such situations. When the mediator is required to make a final recommendation, which the court will defer to, the game is changed dramatically. The additional preclusion of attorneys from the actual mediation is another layer of complexity that family law attorneys must face. Ultimately, an advocate’s goal must include intense preparation such that the client can adequately advocate for himself while establishing the credibility and trust with the mediator so that her recommendation will go in his favor should no mediated agreement be reached.