Mediation Versus Arbitration

Norris Family Law

We find that many people are confused by these two terms. While both are methods for alternative dispute resolution, they mean very different things. “Mediation” is a process by which the parties to a dispute have a series of meetings with an independent person (the mediator) who acts as a facilitator to help the parties reach a settlement of all their issues through discussion and compromise. The mediator in a family-law matter is typically an attorney experienced in family law who can help the parties identify issues, and assist them in resolving the issues in a way that meets their goals and standards of fairness. The parties’ attorneys typically are not present during the sessions, but this can occur if the parties agree. The mediator does not issue any decisions; if the parties do not reach agreement, the mediator has no power to make any orders, and everything that was said in mediation remains confidential (i.e., cannot be used in any subsequent court proceeding).

“Arbitration” is very different. While it can be less formal than a court proceeding, it usually involves the presentation of evidence, the examination and cross-examination of witnesses, and the presence of attorneys representing their clients. Arbitration is not focused on having the parties reach an agreement. After the parties have presented their case to the arbitrator, he or she then issues a ruling, which is binding on the parties. The arbitrator has decision-making authority just as a judge does; in fact, in some ways the arbitrator has more authority, because an arbitrator’s ruling generally is absolute and not subject to an appeal, and an arbitrator is not bound by the rules of law and evidence that a judge must follow.

Be careful about the distinction between these very different processes. Do not sign up for "arbitration" if you really mean "mediation". Agree to "arbitration" only if you truly want to give the person decision-making authority over you.

Custody Mediation

Who Needs To Participate In Child Custody Mediation?

Under California law, before a Court can hear and decide a custody motion, the parties must attend custody mediation. So if one party wishes a change in the current custody and/or timeshare arrangement and files, or threatens to file, a motion, or if parents who have just started the dissolution process cannot agree upon a timeshare, the parents must use some sort of child custody mediation. The process differs from case to case, but if successful, the end result is that the parents, not the court system, determine a custody and timeshare arrangement that is best for themselves and their child(ren).

Family Court Services

Each Bay Area county has established its own program (Family Court Services) to provide parents with access to mediation services as mandated by state law. The attorneys at Norris Family Law will meet with you to explain the process and help prepare you for your mediation. Children should not be involved in the mediation unless ordered by the Court or requested by the mediator.

Private Mediation

Many parents, however, agree to utilize private mediation rather than Family Court Services. There are a number of private professionals that specialize in custody and timeshare mediation, and the attorneys at Norris Family Law will work with you in selecting the right professional relative to the facts and issues in your case.

Parenting Plan

If successful, parents leave mediation with a parenting plan that best suits their needs and the needs of their child(ren). Some plans are very general, with minimal structure, while others cover every aspect of the timeshare, including all holidays, school pick up and drop off, extracurricular activities, and details specific to each individual case. If the parents agree upon a plan, it is made into an enforceable order of the Court.

What If The Parents Cannot Agree?

Depending upon the county in which your case is pending, the mediator may or may not issue his or her recommendation to the Court. If the parents cannot agree, it is the judge who decides upon an appropriate custody and timeshare plan. Norris Family Law, like most family law attorneys, believe it is better for the children and the parents if the parents can reach a mediated agreement, as it provides all concerned with far more flexibility than a plan decided by the Court.