Over the Labor Day weekend, I read the July 2015 edition of Family Court Review: An Interdisciplinary Journal. I’d been meaning to read that particular edition because the guest editor was none other than Forrest S. Mosten, who’s mentored and trained me over the years and I am a core member of his family law mediation study group. He should be commended for his selection of contributing authors and the topics on which each of those authors wrote.
That being said, as I read the various articles, I was bothered by the authors’ lax use of the words “mediator” and “mediation” in the various articles and I say that even though I’m well aware that mediation means different things to different people. In fact, in 2013, I published an article titled What Does Mediation Really Mean?. My issue involved what, at least to me, appeared to be the use of the words “mediator” and “mediation” to mean something they’re not.
For example, in Redesigning The Family Law System To Promote Healthy Families, William J. Howe, III and Elizabeth Potter Scully said, “mediation of children’s issue is usually mandatory.”
Scully practices law in Los Angeles County, California, as do I. What Scully and Howe are referring to as “mediation” in California for such matters is what’s known as Conciliation Court. In fact, Conciliation Court is referred to as “mediation” on the court’s own website.
Here’s the rub. A core feature of mediation is that it’s a confidential process. The following is an excerpt about mediation confidentiality from an article titled What Is Mediation Confidentiality? by George Khoury, Esq. that was published by Findlaw:
“Requiring mediation to be confidential allows the parties to more meaningfully interact and explore potential resolutions that might be satisfactory to all involved without fear that settlement offers or proposal will be used against them. Mediation confidentiality is designed to facilitate and encourage the exchange of settlement offers....
What Is Actually Considered Confidential at Mediation?
Typically, anything that gets said at mediation will be considered confidential.... In addition to the numbers exchanged, and statements made at mediation, any documents submitted, or evidence relied upon, will also be confidential.... Also, parties are strictly prohibited from bringing up the content of mediation negotiations later in court....
Lastly, the actual mediator's statements, findings, and recommendations, if any, will also be considered confidential. Mediators cannot testify in the court case, and are generally barred from speaking with the judge, except for reporting whether a case settled or not.”
Consider how and why mediation confidentiality exists and how that aligns with the following information about “confidentiality and mediation” as far as Family Court Services is concerned:
“In some courts, mediators make ‘recommendations’ about child custody to the judge when the parents do not reach an agreement in mediation. The mediator may include what you say in mediation in the report, which is sent only to the judge, to the other parent, and to his or her lawyer. In other courts, information from the mediation would not be shared with the judge.”
California Marital Settlements and Other Family Law Agreements published by CEB - Continuing Education of the Bar, California describes mandatory custody mediation in the section titled Mediation Distinguished from Other Processes, includes it as an “Other Process” and explains why as follows:
“Whenever there are contested issues of custody or visitation regarding a minor child, the law requires ‘mediation’ of all such issues. See Fam C Sectiom 3170(a). The mediation described in Fam C Sections 3160-3186, which is commonly referred to as ‘mandatory mediation’ has little in common with the subject of this chapter. In general, custody mediators are made available to the parties through the superior court’s Family Court Services department, and the mediators must meet specific qualifications. See Cal Rules of Ct 5.210, 5.215.
Mandatory mediation addresses only child custody and visitation (Fam C Section 3170(a)) and does not include the other issues necessary to a full marital settlement agreement. Neither party can refuse to participate or unilaterially suspend or terminate the process. The mediator is appointed by the court (Fam C sections 3160-3164(a)) and is not subject to the approval of the parties. In so-called ‘recommending’ counties, if mandatory mediation does not produce an agreement, the mediator may abandon neutrality and play an active role in the litigation of the disputes that mediation has failed to resolve. Depending on the local court rules, the mediator may make a recommendation to the court on the custody or visitation issues. Fam C Section 3183(a). Further, although the statute refers to mandatory mediation procedures as ‘confidential’ (See Fam C Section 3177), the mediator might testify in court about communications from the parties in the mediation process....”
Now, ask yourself, how can Family Court Services’ “mediators” make such recommendations in accordance with mediation confidentiality?
I’m afraid the answer is “they can’t.”
They bypassed this little sticking point by passing legislation in 2012 requiring that Family Court Services’ “mediators” working in recommending counties be referred to as “child custody recommending counselors” and that the process itself be referred to as “child custody recommending counseling.” Prior to that change, the process was referred to as “mediation” and the custody counselors were referred to as “mediators.”
Meanwhile, if you read Family Code Section 3183, you will see that within the legislation itself, such “child custody recommending counselors” are referred to as “mediators” and “child custody recommending counseling” is referred to as “mediation.”
The problem is that they aren’t “mediators” and the process isn’t “mediation”, regardless of what you want to call it because mediators can’t possibly make such recommendations, which is why they were required to change the name in the first place.
Another important distinction is that lawyers are also precluded from attending Conciliation Court, even if their clients want their attendance. In mediation, lawyers can be involved in the process.
Also, the new Conciliation Court Agreement form now reads as follows: "This agreement regarding child custody and visitation is a final custody and visitation order… The parties understand and agree that this order may be modified in the future only upon…[showing] a significant change in circumstances." There are legal ramifications to such language and the "custody counselors" aren't lawyers and therfore can't provide the parents with legal advice. Furthermore, as previously stated, lawyers aren't allowed to participate in the process.
Good intentions and the fact that many parents do resolve their matters through Conciliation Court aside, from my perspective it is nothing more than a court clearing mechanism and referring to the process as “mediation” and the counselors as “mediators” causes a great deal of confusion among judges, attorneys, the parents who have participated in the process, and the public at large.
When I posted about this on my personal Facebook page earlier this week, Ann Bingham Newman, PhD, MFT commented as follows:
“Some of the worst things I hear have to do with families seeing the court ‘mediators’ and having the very fabric is their being and their children's ripped to shreds. And they believe because the court tells them so that they have been to ‘mediation’ and don't like it or want it. Sad because they have not had a mediator like you who has understanding and empathy which is very healing!”
It’s not only unhelpful for people to refer to Conciliation Court as “mediation” and custody counselors as “mediators”, but it is actually harmful, as Bingham Newman pointed out. Let’s call Conciliation Court what it really is — at least as it exists today - it’s nothing more than a court-clearing mechanism.
By the way, Bingham Newman is trained in mediation and Collaborative Law. In fact, she is a well-regarded coach and child specialist in Collaborative Divorce matters.
In any event, as I mentioned from the outset, the lax use of the term “mediation” in many of the articles included in the publication troubled me.
For example, in The Role Of Western Religious Values In Peacemaking For Divorcing Couples by Jeffrey A. Marx, he said the following:
“We have now in many court systems a mandatory mediation session that must take place before a case goes to court."
In The Place For Custody Evaluations In Family Peacemaking, Mary Elizabeth Lund said the following:
“Mediation has evolved into one of the most frequently provided family court services (Babb, 2008) with well-done research on the process and outcome (Emery, Sbarra, & Grover, 2005), Kelly, 1996)….
In the frequently used ‘tiered’ model of resolving custody disputes described by Salem (2009), parents must first attend mediation and if they cannot decide about arrangements for their children, proceed on a path toward the judge making the decision for them, which may include an evaluation.”
Mosten himself said the following in his article titled Unbundled Services To Enhance Peacemaking For Divorcing Families:
“Mediation is now part of the family law process in a myriad of ways. Some issues mandate mediation within the court setting, not just once, but often many times before an ultimate judicial decision.”
Please don’t misundertand my intention in publishing this article. As I said at the very beginning, Mosten is a mentor of mine, I’ve learned a great deal from him over the years and have a great deal of respect for him. In addition, I was being very sincere when I praised his selection of authors and topics for the publication. Other than the lax use of the words “mediator” and “mediation” in many of the articles and a few other points I may raise in future articles, I thought that each and every article was very well-written, set forth very useful and important information, and is worth reading.
The main reason I take issue with the inclusion of Conciliation Court as mediation and custody counselors as mediators is because too many family law judges and attorneys view it as mediation and them as mediators.
I regularly hear family law attorneys describe Conciliation Court as mediation at business networking events and other such things, when they describe what it is that they do for a living. A very significant percentage sincerely believe that they only litigate child custody and visitation matters if such things can’t be resolved through mediation. They don’t see the value in referring their clients to private mediation before filing the adversarial pleadings with the court to obtain a court hearing and Conciliation Court date. After all, why should their clients pay for such a thing, when it’s available for free through the court? Of course, their clients incur legal fees and costs having them prepare and file such pleadings in order for them to access such free mediation services.
They also somehow disregard the fact that filing adversarial pleadings prior to mediation tends to exacerbate the conflict between the parents and that litigation was always intended to be used as a last resort for resolving disputes.
In 2015, I published a 7-part series of articles titled How Family Law Attorneys Tend to Think because I felt the public should be aware of such things because I believe in self-determination based upon informed consent. If the professionals involved in the field themselves don’t understand why mandatory custody mediation in California, aka Conciliation Court, was listed as something other than mediation in materials prepared for the continuing education of California lawyers, how on Earth can we expect the general public not to be confused?
The irony behind this article has to do with how I came to learn about this particular edition of the Family Court Review.
As mentioned earlier, I have been a core member of Mosten's family law mediation study group for a number of years. In 2015, Mosten advised the members of our group that he was the guest editor of the July 2015 edition of the Family Court Review. He then commented in front of the entire group that I should make it a point to read the articles in the publication because I could take one word from any of the articles and turn it into an excellent and powerful article on its own. I hope I’ve done just that with this article.