Mediation for Ugly Cases

Mediation is, some places, a tool for what you might call light cases. Two neighbors disagree about a tree, two parents who can still talk to each other in a calm fashion want some help in parenting time plans. Some mediation groups won’t even touch cases with, for example, a restraining order in the history, or allegations that, if proven, would be criminal. Frankly, and based on a great deal of experience in family law, this excludes those groups and those mediators from the vast majority of cases. Family law gets pretty ugly pretty quickly, and a mediator who wants to help but won’t touch uglier cases should probably find another field.

Similarly, though a lot of parties don’t know it, a lot of business disputes can, if things go wrong, turn into much more serious cases. For example, a contract dispute over who invented what can turn into a fraud claim if one party goes to the police, and of course if a company is publicly traded, what would otherwise be a private dispute between executives can start to look much more like insider trading or securities fraud. Even more serious are the problems that can pop up in probate; in fact my first big multi-felony case started with a couple taking care of grandma during the last year of her life, and having a dispute with family members over how the money had been spent. One of them called the cops, and the next thing that happened was an 80-count indictment for mandatory sentence felonies. It went from a family squabble to a potentially life sentence, without any of the parties involved ever meaning for that to happen.

Broadly speaking, a lot of things in America are illegal, and it’s not always at all obvious what they are. Often both parties to an argument will feel like they are definitely right and will try to get an outside agency involved, not knowing at all that they might end up the one in trouble, or dealing with something much more serious than they expected. A lot of family disputes, too, can turn vicious quite suddenly, and when this happens, a mediator needs some experience and some knowledge to be able to help.

To be clear, if there is an active restraining order preventing one party from talking to the other, there’s very little we can do. It’s not uncommon in family cases to have restraining orders in both directions, in fact. The best that can be done here is to ask the lawyers involved to consider trying to get a court order lifting the ROs for the purpose of, and for the duration of, mediation, which is of course generally done of video chat for these cases. Similarly, of course, a mediator can’t prevent anyone from going to the cops or other agency, and may be a mandatory reporter for some issues. But, a big part of our job and our skillset is preventing bad problems from getting worse, and at times we can do our best work in the uglier situations.

It’s true that mediation is harder in these cases, and it’s true that you rely even more heavily on an experienced mediator, but it can be done and the results can be fantastic. Even if you’re pretty sure you have a dispute that can’t be mediated, you might be surprised at what can be accomplished by someone with some experience, and you might be surprised which cases can turn ugly, and how fast. If you have something you think might turn ugly, or something that already has, think about giving us a call.

Pre-divorce or Anti-divorce?

One of the questions we get is whether mediation ends in divorce. Often people come to us because they aren’t sure where the relationship they’re in is going, and can’t tell yet whether they’re destined to separate. Often parties are well educated enough to know that the divorce system gives certain advantages to the party that files first, and don’t want to get caught a step behind, but aren’t sure their marriage needs to end either.

This is actually a great time to try out a mediator with some relevant experience. To begin with, there are a lot of myths about how divorce works, and we find it’s a lot easier to resolve problems if you can at least start with a good view of the facts. A mediator who hasn’t worked in family law may have no idea why the first party to file gets an advantage, or what the TRO applies to, or how payments from one spouse to another to equalize the estate are actually accomplished. Financial and timing issues often matter a lot to the parties involved, and without getting to the facts about the process first, it can be difficult or impossible to get to an agreement the courts would even accept. Accordingly, we always recommend going with someone who has done relevant work in the field you’re in, and recently. The courts change rapidly and good advice from 10 years ago is often terrible advice now.

Second, if a relationship is going to be saved, both parties will have to make some kind of change, usually pretty significant changes. One of the big things we strive for in mediation of any kind is agreements that are realistic, and this is especially useful if two married people aren’t sure they want to stay married. A good mediator can help people find new ideas to try and can help sort through what might reasonably help this specific couple, rather than just running through some default options. Very frequently couples with kids want to maintain some kind of stability; a good mediator can explain some options like bird-nesting, in which the family home is shared between spouses, and can help come up with creative solutions so that the kids see both parents a healthy amount. A great mediator can find time in something like a parenting schedule for the parents to try different strategies with each other, too, to see if some of the good parts of a marriage can continue.

Last, and perhaps most obviously, as mediators we don’t make money off divorce. Certainly we take pride in saving people massive amounts of money in a divorce and we like to think we make the process a lot smoother, but fundamentally we get paid for mediating, and that happens when parties to any kind of dispute can talk to each other. One of the hard things about being a lawyer in family law is that you often make most of your money when disputes get worse, and the client is more willing to spend more money fighting their spouse; it’s easy to find stories of couples who spent so much time and money getting divorced neither party has much of anything at the end. An experienced mediator can help you find out what kind of agreement you need, and so we often say we’re not pro-divorce or anti-divorce; we’re pro-relationships. If you feel like you’re in a difficult spot and not sure where to go from here, consider giving us a try.

How much does mediation cost, and who pays?

One of the obvious questions about mediation is how much it costs, and, in matters that are already contested, who will pay for it. This post gives figures for common costs, compares those costs to litigation, and explains who generally will be footing the bill.

First, of course, the total cost depends on how much time a matter is likely to take. Something like a divorce with kids and a house takes more time than a landlord/tenant buy-out mediation, and something massive, like a court-ordered mediation for a partition suit between businesses can take about the most time. However, it is possible to give a rough estimate for common cases.

For a one-shot landlord-tenant case or a divorce without kids or serious real property concerns, most of the time, we get things done within a half day or a full day of mediation, which, at the time of writing, is between $500 and $1000 total. This is a whole lot less than trying to handle the same cases through litigation, particularly if both sides are represented. We can’t guarantee that your particular matter will get finished within the time in a flat fee mediation, but it’s fairly common, and a great value when it works out.

For a divorce with children, we find it’s pretty common to have multiple sessions, but even three full day sessions is only $3000, which is about the minimum that you could pay a family law attorney to get started on a divorce. Prices go up from there, but that’s a good benchmark for how much cheaper mediation can be.

Who pays is also a good question. Briefly, usually, for a landlord/tenant issue, it’s most common for the landlord to pay. For a divorce, or a business dispute, both parties normally split the cost, unless there’s a huge discrepancy in available funds between the parties. For neighbor disputes, as you would think, most of the time both parties (or all parties) split the cost.

Broadly, where mediation is likely to work, it’s a huge cost savings. Most of the time lawyers won’t get started for less than our total cost, and I think we do a great job of helping potential clients figure out when and where to mediate. If you have a dispute, or a case in progress and you’re worried about cost, contact us for a free consult today.

Court Mediation vs. Private

Many cases, once filed, get “sent to mediation,” but this phrase can mean a few different things. This post explains the different types of mediation that can be required or offered for a court case, and explains why we think what we offer is particularly helpful.

Most family law courts in California and many landlord/tenant courts offer some degree of day-of mediation, meaning that, if both parties show up for court, there will be a mediator present who will attempt to help the parties mediate their disagreement. Unfortunately this is less and less common as cut-backs and general court chaos get more pervasive, and also unfortunately, mediators working in these courts have very little time to help the parties on their issues. I’ve done these and it’s not uncommon to have 50 cases on a half-day docket; you can imagine how little time that leaves, even if not all the cases want to mediate. Certainly for cases like civil harassment filings or evictions, you can expect maybe a half hour for both parties out of day-of mediation, less in courts like SF or Contra Costa. Alameda Co. almost never has mediators anymore, day-of or otherwise.

Family law generally also has people who make recommendations to the court on custody matters, as well as general purpose family mediators in the larger court systems. The same basic issues apply here: parties working for the court have very little time, and fairly commonly, one or both parties have been briefed by their respective attorneys as to how to game mediation to get a good recommendation. The lawyers have to do this: most family courts are very busy and take recommendations from Family Court Services as their default order, since it saves time. Thus it’s not really mediation, often; the parties are forced to go and one or both has probably gotten a cheat sheet.

There’s also options for litigants to do court-supervised settlement conferences, but those differ so much from courtroom to courtroom it’s hard to give an overview.

Last but best, in our opinion, is that the court, in a family or civil matter, may refer the parties to private mediation. This is also, generally, the more expensive option, though please see our page on Pro Bono Mediation. Private mediators, like us, have a lot more freedom to set the terms of mediation, and a lot more time to get at the issues. Unlike a court mediator, we don’t take more cases than we can give our full attention to, and we’re able to offer mediation in a format that works best for the parties, including in person at our office, in person in a good spot for the parties, or virtually over Zoom.

We’re also not on the hook to provide a recommendation, which helps a lot. A family court mediator often must, on the strength of a very brief back and forth with the parties, indicate to the court who they think the child in question should spend most of their time with. This is a very hard call to make, particularly so quickly, which leaves a lot of people with complaints about family court services. We’re able to work with both parties to create a much more thorough plan than just, Custody to Mom, Support to Follow, and we find it leads to much better outcomes.

So, in sum, private mediation is generally more expensive but, in our opinion, it’s worth it. You get to do mediation on your terms with someone who has the bandwidth and professional training to help you and the other party come to a real resolution, and you have the opportunity to actually get at the heart of some of your problems and resolve them. Coming to affordable private mediators like us is an even better idea if you went to day-of mediation and it failed, or you got a recommendation you don’t understand or agree with from Family Court Services. Often the problem with a mediation session was the format, not the people, and by coming to a provider that’s flexible and responsive on the format, you maximize your chances of actually solving some problems.

Some Different Styles of Mediation

Mediation actually comes in several different flavors, and it’s worth considering whether a particular style of mediation is a good fit for your dispute. There are also a lot of different processes called mediation in law and dispute resolution, and they’re all surprisingly different. This post will explore some of those differences and talk about which styles work well for what kind of problems. Note that these are pretty broad categories, and of course different practitioners in the same system will have individual differences as well.

First, let’s talk about day-of-court mediation, which is often the only type that people have much exposure to. This is a good example of what’s often called evaluative mediation, in which the mediator takes a more active role in the process. The mediator may offer their own opinions or solutions, and they may pressure the parties to reach an agreement. Evaluative mediation can be helpful in situations where the parties are unable to come to an agreement on their own, and is more or less obligatory in family law or housing court dates in California. The actual mediations in the court house, or virtually as part of a court proceeding, tend to be rushed and somewhat contentious. This is not what we usually offer, but can be a good and quick solution if you have a case that’s stuck on one or two rather specialist points.

More commonly offered out of court is facilitative mediation, in which the mediator's role is to help the parties communicate effectively and to facilitate the negotiation process. The mediator does not offer their own opinions or solutions, and they do not pressure the parties to reach an agreement. They do, however, track and help iron out any agreements the parties come to. In facilitative mediation the parties are generally addressing the mediator, not each other, and there’s more of an emphasis on settling the dispute than trying to get terribly deep into the relationship between the parties. '

Increasingly offered for smaller scale disputes or via neighborhood organizations is what’s called transformative mediation, a newer style of mediation that focuses on helping the parties to understand each other's perspectives and to build, or re-build, a relationship. Like in facilitative, the mediator does not offer their own opinions or solutions, and they do not pressure the parties to reach an agreement. Transformative mediation can be helpful in situations where the parties have a long-term relationship and want to resolve their conflict in a way that preserves the relationship, and so can be well suited to things like an entirely uncontentious divorce with children involved, or a dispute over a tree or property line between neighbors who intend to keep living next to each other. In transformative mediation, it’s much more common for the parties to address each other directly, with help and guidance from the mediator.

A simpler way to remember the difference is to imagine a situation of escalating seriousness. If two romantic partners are having trouble figuring out respective responsibilities in the house they bought together, transformative mediation would be a great place to start. If the relationship has failed and the parties need to figure out how to sell and split the house, facilitative mediation would be a better choice. If one of the parties has a restraining order against the other, most likely they’ll be doing some evaluative mediation, at a remove from each other.

Unfortunately a lot of mediation organizations only do one style, and tend to come to believe that most if not all problems can be handled with that style. We haven’t found this to be true, and frankly feel it leads to either a lot of very selective case intake, or just a lot of gate-keeping. We have mediators trained in several different styles, and take pride in being able to fit the style to the dispute. If you have a complicated issue, particularly if you haven’t found a good mediator after a few tries, consider giving us a call.

Mediation in Custody Cases

Custody cases are often the most difficult of family law matters. Deciding who will provide parenting and how is often incredibly contentious, and it’s often said among family law attorneys that custody cases only end when the children in question are 18. Courts are increasingly ordering such cases to mediation, and the benefits for custody can be huge.

First, remember that the official court process is fairly inflexible. Experienced family law judges will always tell the parties that the court’s decision will be, necessarily, fairly limited. Asking a judge to decide means that someone who doesn’t know all the details will make the decision, and most likely they won’t have time to go over likely permutations or problems in the plan they come up with. In mediation, the agreement will be crafted by the two parties that know the most about the situation, and a good mediator will discuss likely problems so that the parties can have a plan to deal with issues that might crop up.

Also, frankly, the other huge advantage of mediation is that you’ll have more than an hour to work on a plan. Very often, parents may not know or may be too angry to consider that one parent has a huge attachment to Easter, so much so that it’s much more important to that parent than Thanksgiving and Christmas. A mediator can discover and take the time to find that actually, this arrangement is better for everyone if Easter is always the holiday for Parent 1, and Parent 2 can have Thanksgiving and Christmas together. Imagine you were setting up a custody arrangement for two people on the bus, and had to have it finished during the bus ride. You’d give one party Thanksgiving and one Christmas and start looking for your stop; the judge will, 99 times out of a hundred, do the same.

Further, it’s a lot easier in mediation to include issues with third parties, like other family members. For example, when can grandparents provide parenting? A useful answer to the question needs to investigate how everyone’s relationship with Grandma is, and whether this is going to cause more problems than it solves. Mediation also makes it a lot easier to consult the third parties that might be involved; I’ve often had custody cases in which we got an agreement in court and no one was able to check whether or not Grandma could actually provide childcare as the parties had agreed. She couldn’t, and so the case went right back to court. Mediation avoids this.

The trick, of course, is that custody can be hard. Very strong feelings are involved, big decisions are involved, and it can be difficult or even impossible to address these issues calmly and politely. What you need to mediate a custody dispute is someone who’s comfortable with big emotions and experienced with family law disputes. At Far River, we have extensive experience in family law, both in family law court, criminal court, and the multiple varieties of restraining orders. We can handle bitter disputes, and we aim to get both parties to a realistic and thorough agreement that will let them stop fighting in court, and stop spending money and time that could better go to the kids involved. If you’re having a difficult time figuring out custody, particularly if mediation hasn’t worked before, consider giving us a try.

Basic benefits of Mediation

Mediation is increasingly used to settle disputes, either before a lawsuit has been filed, or after. Mediation is a process in which a neutral third party, called a mediator, helps two or more parties in a dispute come to a mutually agreeable resolution. Mediation is a voluntary process, and the parties are free to walk away at any time.

There are many benefits to mediation over litigation. Mediation is:

• Faster and less expensive. Mediation can take a fraction of the time and cost of litigation. This is because mediation is a more informal process, and there is no need to go through the court system.

• More confidential. Mediation is a confidential process, which means that what is said in mediation cannot be used in court. This can be important for parties who want to keep their dispute private. Mediators also cannot be called as witnesses in civil disputes.

• More likely to result in a settlement. Mediation is more likely to result in a settlement than litigation. This is because the parties are actively involved in the process and have a greater say in the outcome.

• More creative and flexible. Mediation is a more creative and flexible process than litigation. This is because the parties are not bound by the rules of evidence or the law. They can come up with solutions that meet their specific needs.

• More likely to preserve relationships. Mediation is more likely to preserve relationships than litigation. This is because the parties are able to communicate directly with each other and work together to find a solution.

Here are some additional benefits of mediation:

• It can help parties understand each other's perspectives. Mediation provides a safe and neutral space for parties to share their stories and perspectives. This can help them to understand each other's point of view and to see the dispute from a different angle.

• It can help parties build trust. Mediation can help parties to build trust by creating a respectful and collaborative environment. This can be important for parties who need to continue working together after the mediation is over.

• It can help parties resolve their dispute quickly and efficiently. Mediation can help parties to resolve their dispute quickly and efficiently by avoiding the time and expense of litigation.

• It can help parties achieve a win-win outcome. Mediation can help parties achieve a win-win outcome by focusing on their interests rather than their positions. This can lead to a solution that is acceptable to both parties.

Landlord/Tenant Mediation in Berkeley

Landlord/tenant mediation is a difficult thing to pull off anywhere in California, but it can be especially difficult in Berkeley, due to the confluence of laws, ordinances, and ongoing legal cases about Berkeley’s ongoing moratorium. This post will explore some of the unique challenges in Berkeley, and explain what we can do to help.

First, if you’ve looked around for legal counsel in and around Berkeley, you’ll have noticed there aren’t a ton of options to work on a problem before a lawsuit is filed. There are a lot of people who do wrongful eviction cases, but that' doesn’t help a tenant who’s still in place. There’s the Rent Board, though the process of petitions and similar can be slow and only somewhat coordinated with the relevant local agencies, like code enforcement. Landlords are often hesitant to get too involved with the Board, given the impression that they’re more tenant-friendly and that it’s possible that unrelated code issues will come up incidentally, whereas tenants can find that the scheduling the Board needs to do can be too slow to suit their needs.

There really isn’t a great venue in which a landlord and a tenant can talk together, with a neutral who also knows the lay of the land. This is particularly important in Berkeley, because there are a lot of rules that are counter-intuitive, and the market for housing around here is fairly unforgiving.

When we do landlord/tenant mediation for Berkeley cases, we start with an orientation, in which both parties can learn how the laws and ordinances here work, and get a solid, realistic view of the process, if the dispute were to go to court. We do this because we find that, very often, people’s notion of how the legal process works, particularly for landlord/tenant, isn’t very accurate. Some people think that they can ask a judge to evict a problem tenant, when in fact Berkeley presently has a moratorium on nearly all evictions, and Alameda Co. is absurdly busy, so in fact something would have to go dramatically wrong in a case before a property owner could talk directly to a judge. Tenants sometimes think that Berkeley protects all tenancies; this is not nearly as true as it sounds, and moreover, disputes between tenants and landlords can often give rise to things like civil harassment cases, entirely outside landlord/tenant law.

Knowing what the situation in Berkeley actually is, including getting a realistic assessment of which agencies are likely to get involved in a case, makes negotiation much easier. For example, if a tenant wants better insulation during cold weather, the landlord may assume it would be fairly easy to get a contractor to put in double paned windows, and so may agree to do so to avoid a suit. However, many places in Berkeley have historical-building protection, and the small number of registered contractors here are often very hesitant to agree to jobs on protected buildings, so the landlord may have just made an impossible promise. Similarly, it often happens that landlords and tenants agree that the tenant will do work on a unit both parties know isn’t up to code; this is actually a huge headache for both parties, if it goes to court.

So, the extra utility of a mediation for landlord/tenant disputes in Berkeley is that we know how things work here, including how long things can take and how much they cost, and that we can talk to both sides. As a lawyer I’d be restricted to telling one side about the pitfalls and special, uncommonly known tricks they can use to help their case, and unfortunately I need to tell a client whether they can use a somewhat broken and inefficient system to their advantage. As a mediator, I can tell both parties what would happen if they chose to go to court, and I can work with both parties to help them settle their issues instead. Mediation doesn’t prevent you from being able to go to court, of course, but it does stand a fantastic chance of helping you resolve your dispute more cheaply, and much more quickly.

I’ve handled buy-outs, evictions, complicated evictions, wrongful eviction suits, and so on, as well as the sort of cases out of Berkeley that involve restraining orders, criminal charges, and probate complications. We’ve done day-of mediations in court as well as the sort of days-long, scheduled well in advance mediations with multiple attorneys. We can help you resolve your dispute with a minimum of stress, and a minimum of expense. If this sounds good, consider contacting us today.

Divorce Mediation in San Francisco

We’ve written on divorce mediation before, but people who know SF know it’s a pretty unique place, and that uniqueness, for better or worse, extends to things like divorce mediation. This post will cover some of the unexpected differences in San Francisco proper, as well as covering the basics of how mediation interacts with the court systems.

First, one of the tricky thing in SF divorces is valuing intangible assets. For example, if you have funder’s stock in a start-up, it may be worth basically nothing now, but it could be worth a huge amount of money in a few months, if the company launches well. Similarly, we’ve handled a few cases with crypto assets, which are, at best, extremely volatile and sometimes nearly impossible to turn into USD to be split. Mediators who have only traditional training will struggle with these sorts of issues, being more used to slow-moving assets like houses and retirement accounts. Getting to a reasonable figure for the value of IP, stock, crypto, and similar SF assets requires mediators who not only know what these things are and why they matter, but which can communicate the important factors here to both parties. Commonly, the person who holds assets like IP knows a lot about them, and the other party may be rightly skeptical of the right holder’s valuation; the goal of mediation here is to have enough facts on the table and enough shared understanding to reach agreement.

Second, real estate in SF is not like real estate almost anywhere else. Of course the prices for houses here are very high, but they’re also very volatile, and a lot of things that seem like options in other counties are simply not possible in San Francisco. For example, if Alice and Bob share a duplex with a couple of renters, but are now going to get divorced, in many counties you’d say, get the renters out, sell the house. Anyone familiar with the eviction process in SF is laughing now, because there is no fast way to get renters out of a house in SF. The average payout to tenants to move, per tenant, is about $45,000.00, and while it’s true that the housing courts are a lot faster now than they were in the beginning of the pandemic, they’re fast in dismissing eviction filings that don’t rigorously comply with SF’s ordinances, which are some of the most protective in the country.

So, the question of what a house is worth in SF is very different than the question of how much one party might pay to another in a divorce, because getting at that value can be very difficult. It’s also generally not realistic to assume that one party to a divorce will be able to find another place in a comparable neighborhood in a reasonable amount of time, because many real estate deals get sniped by out of state developers who will offer a price over asking, in cash, with inspection waived.

Thus, parties gain immensely from a skilled and knowledgeable mediator. We have the ability to deal with many more creative solutions than a court, and we know that some of the off-the-shelf solutions just don’t work here. Our goal is to get the parties to a realistic and complete agreement, which fairly values difficult assets like business ownership, and doesn’t rely on the parties being able to do things that are, around here, very difficult.

Last, of course, a divorce is a legal contract, and so a mediated agreement needs to be accepted by the court in a divorce filing. This is harder than it sounds: the vast majority of proposed settlements in divorce cases are reviewed with a fine-tooth comb, as it were, by clerks, not judges. A minor deviation from local rule, or even local custom, will result in a rejected settlement, which is a major headache, in addition to being expensive. We work with lawyers who know the SF family court clerks by name, and can maximize your chances of a clean and easy divorce judgment.

If you’re looking at getting divorced in SF and want to explore a more humane, cheaper, and faster process, contact us today!

Mediation vs. Arbitration, and Cali employment contracts

Most states, including California, have a process set up for both mediation and arbitration, though the difference between them is not always obvious. Specifically, many employers, particularly companies large enough to be in multiple states, require arbitration of certain claims, and there was a recent Ninth Circuit case on whether or not employers in California can continue to require that employees agree, up front, to arbitrate certain claims in the future. The short answer is yes, they can, subject to further litigation.

Broadly, arbitration differs from mediation by being closer to a court proceeding, all things being equal. Generally speaking, parties going to arbitration must participate, whereas mediation is always considered to be voluntary in nature. The lines here get a bit blurred, because of course the court in California sends many if not most cases to some form of mediation, but the difference can be seen in some of the associated procedures. Arbitration generally requires certain filings from the parties, whereas mediators ask for an impact statement and documents to prepare for a mediation, but can’t force either party to actually file these, and we can’t force anyone to stay at mediation if they’ve decided they don’t want to. Arbitration, again generally speaking, requires more lawyer time and is generally a bit more complicated to get to grips with if you’re not already experienced in alternative dispute resolution. Mediation is designed to be accessible, and the decisions that come out of mediation are co-authored by all the parties; arbitration is like a quicker version of court, and the parties get a decision by the arbiter at the end that they didn’t help write, and which may not cover as many of their concerns. It would be similarly mostly correct to think of a mediator as trying to create an agreement that works for the parties, and an arbiter as trying to lay out what a judge would likely do with the case, if it were filed.

The advantage of arbitration, particularly for an employer, is that it’s faster than litigation and it gives, in a sense, a preview of what the whole case would look like if fully litigated. Most of the time, there is a process in which arbitration decisions can be challenged in court, though it’s difficult to do so if the parties already agreed to binding arbitration, for example in an employment contract. So, an employee who wanted to sue but had to go to arbitration may face an uphill battle if arbitration doesn’t decide in their favor. The company may conclude that, even if the employee can challenge the award in court, the court case is likely to follow a similar path as the arbitration, and the company need not fear a large judgment.

As of now, employers in California can still require that employees agree to arbitration as a condition of employment, since the court found that a federal act pre-empted California’s attempt to prohibit mandatory arbitration clauses. If you are likely to have to go into arbitration, particularly as a result of an employment dispute, it is a very good idea to get at least an orientation from a group experienced in both mediation and arbitration, like Far River. It’s also crucial to make sure you have a good idea of what kind of organization will be doing the arbitration; often employers use firms that are known to be employer-friendly, and if the contract allows you to suggest other arbiters, it’s a good idea to do so. Last, it’s very useful to know some of the weirdly important surrounding facts about employment disputes, like what the timeline for handling complaints from the relevant government agencies are. California often requires what’s called agency exhaustion, meaning that a complaining employee must work through an agency like the EEOC first, before suing. As you would expect, this can take years.

As an employer, it’s good to reflect on the fact that arbitration can be similarly expensive at times, though generally without the substantial delays of a court case. It’s worth considering, particularly for a smaller company, whether it would be cheaper and easier to go to mediation with a disgruntled ex-employee, as the process is more informal and the mediator may be better equipped to get at what the employee is actually mad about and how things could be resolved without further process. One of the dangers of having an employee go through something like an EEOC complaint is that, even if the employee is likely to lose eventually, the company spends a lot of money and time trying to defend themselves, perhaps more than it would have taken to make the employee happy enough to not file in the first place.

In any event, it is likely there will be further litigation on when and how employers can require arbitration in California, but in the interim, we think there are excellent reasons to consider when and where to use mediation instead, and failing that, considering groups like Far River as arbiters. If this information sounds relevant to your situation, consider contacting us for a free and confidential consultation.

Pro Bono - Mediation help for free

One of the first questions that occurs to anyone looking to get a case mediated is how much the process is going to cost. It’s of course difficult to control the cost of a law case, and mediation can be similar, in the sense that it’s hard to know how long a case will take to settle. We try to help out by offering set price mediations, for a day or a half day, but there is also an option to apply to get mediation help from Far River for free.

Pro bono refers to work that lawyers or other professionals provide without charge, generally for parties or causes they believe in. It’s the same in mediation; we try to find and help with cases we feel strongly about, in the hope that parties who otherwise wouldn’t be able to afford mediation will still be able to benefit from our help. We offer pro bono help in a variety of fields, most frequently family law mediations, which can often be particularly difficult.

So what makes for a good pro bono case? For us, it’s very helpful to have the relevant details we need in the first exchange, meaning the names of the parties involved, and if there’s a case filed, what stage the case is at. Before we can take a case, we need to conflict check it, meaning checking to make sure we haven’t represented or mediated for either party before, and of course we need to know if there are any serious impending deadlines. Thus, the intake form for pro bono work is a bit more detailed. We also need solid contact information for you, since much of the prep work of mediation is scheduling and making sure people have compatible technology.

The other thing that makes for a good pro bono case is a clear dispute. Custody is a common issue because obviously, if parents are separated, the child can only be with one parent at a time, and the dispute is about which parent will have which times. Business disputes are often less clear cut, since there can be issues of payment on contracts, payment on implied contracts, IP ownership, and so on, all of which need to be resolved.

Last and not least, of course, at least one of the parties needs to be someone who legitimately can’t afford the costs of mediation. We’re proud to be able to help, and glad to offer the free assistance to people who really need it. If you think your case might be a good fit, contact us today, and we’ll tell you what we can do to help.

Neighbor Disputes and Mediation

Mediation is often thought of as a thing you use for cases that are bad enough to go to court, particularly now that so many cases are ordered to mediation by judges, but in truth the methods used now started outside of court cases. There are some real advantages to using mediation for matters that aren’t quite bad enough for court, and one of the classics is neighbor disputes over things like fence lines and trees.

The legal method of determining a boundary is called a quiet title suit, and they’re loooooong. The reason is that setting a boundary line involves a lot of parties: at a minimum, the people who live on either side of the line, and the county, and the city, and their respective tax boards. If there are mortgages, and there usually are, it also involves the lenders. The courts are understandably cautious in moving real property lines, and the process of notification is lengthy, even before you start to argue over where the line should be. Once you get to that point, it’s often a duel between at least two surveying companies.

The frustrating thing about this is that commonly, disputes over a fence are not about a physical property line, really, they’re about usage. It does happen that someone is legitimately upset that a neighbor has, eg, built a garage extension over their property line, but often the boundary dispute springs from a simmering dispute over things like leaves raked into the wrong driveway and loud music. In my experience handling quiet title cases, the argument between neighbors almost always started long before anyone noticed a boundary issue, but by the time you’re in court, it’s generally way too late to get at the core issue.

Enter mediation. Mediation agreements can include things like quiet hours that are as specific as neighbors care to make them, and can cover things like who will deal with a branch that fell from a tree on one property onto the other. The other big advantage is that a mediator, by being able to talk to both sides, can get at what secret thing the other party is actually mad about.

I often note that mediation makes the most sense when a person is getting lots of angry demands from another, and doesn’t know why. It’s very hard to figure out what they’re actually mad about in a lawsuit, and it’s a lot faster to get things settled once you do. Rather than spending thousands on a lawsuit that might not get at the core issues, consider spending an afternoon with a professional mediator, and seeing if we can’t get you to the core problem.

Marvin Cases and Mediation

Marvin claims are a California-specific claim in which a person claims, in essence, to be what we used to call a common-law spouse. Two people who have lived together for a long time and have lived similarly to a married couple, but weren’t legally married, don’t have the ability to get divorced, but California does have a (much more complicated) process to sort out who owns what and whether any support should be paid.

If you got here from Google, you probably already know the basics of what a Marvin claim is, but you may have also discovered that 1. they’re complicated, and that makes them expensive, and 2. not many firms handle them. They’re also often a bit hard to mediate, because they’re civil cases, not family, despite dealing with essentially the same subject matter as family law cases.

Briefly, what Marvin says is that you’re not excluded from making claims just because you were living with someone in a romantic relationship. So, Marvin claims generally include things like trying to enforce promises of support, to separate out a family business, or to parcel out debts from a shared house or similar thing. In litigation, this is especially difficult stuff to prove, since generally the agreements were between two people who never wrote down the specifics of their deals with each other. Think of trying to document, at this point, the shared restaurant expenses from someone you dated but didn’t marry, and having to do that in court, with the other party challenging all the receipts.

So, Marvin claims are a great choice for mediation. Like most civil cases in California, they’re often sent to mediation by the court directly, but the parties can also choose to mediate before being ordered. The advantages are substantial: our mediators always start these cases by getting an agreed-upon timeline of the relationship, which can take a shockingly long time to do in court, and we have the ability to really winnow down on which facts the couple agrees on, and which they dispute.

Take a simple example. Alice and Brenda started dating in 1995, and moved in together in 2000. They’re both on the house title, and Alice makes more than Brenda, but Brenda did more of the work around the house. They never married, and now, in 2023, are breaking up. They both have cars, but one is only in Alice’s name, as she has better credit. Who gets the house? Brenda believes she helped Alice work full time by doing more house work; does Alice owe her any support? In California, as in many states, you will never be legally married unless you have a legal marriage, regardless of how long you’re together, so this problem can’t be resolved with a divorce.

The advantage of mediating here, and mediating early, is that you can skip past the preliminaries and get to the meat of the matter, and moreover, you can resolve the non-financial issues as well. It’s very, very difficult to get a court to care that, say, a painting Brenda inherited from her mother is massively emotionally important to her, whereas it’s worth market value to Alice, and Alice wants that money to cover the mortgage. The court essentially has to break everything down to numbers on a spreadsheet, and ask whether each party proved a right to some percentage of a particular asset.

In mediation, the mediator can talk to both parties and tease out the hidden emotions that can confound litigation. We can discover and act on Brenda’s feelings about the painting, we can consider how much Alice’s job relied on someone else doing more house work, and we can help the parties come to an agreement that both can live with.

One of the best things we can offer here, in my opinion, is an orientation on what a Marvin claim looks like in court. Often, two parties who are worlds apart from settlement will shift their positions when they learn what’s really involved in litigating a case, in time, in stress, and in money. In mediator-speak we talk about the BATNA, the best alternative to a negotiated agreement, and at Far River we like to spend some time on the WATNA, the worst alternative. In Marvins, this generally means that the best case for a party is going to court and winning; the worst is going to court and losing. In truth, both are generally pretty bad, and that’s what makes mediation so attractive.

And hey, if you do decide to file, you’re almost certainly going to get ordered to mediation anyway. Consider getting an experienced mediator on board early and see if you can skip some of the stress and expense, and leave yourself more to divide.

What is a Realistic Settlement?

One of the big advantages of a mediated settlement is that it’s realistic, which means that it’s a settlement that the parties can credibly promise to fulfill, and which takes care of all the issues on the table. To show why this is different, we need to understand how it differs from court judgments.

A court can only order the relief that is permitted by law, and that’s a lot narrower than many people think. For example, if Alfred and Betty are fighting over an agreement to sell a car that went wrong, most likely the court will only be able to order one party to pay money to the other, and only after a long litigation process. Presuming Betty wins, about the best she could hope for is a judgment that Alfred should pay her for the value of the car, and maybe her costs in bringing the case, though the latter is relatively rare. The court generally won’t consider whether Alfred has the money to pay, which may bring both right back to court in short order.

Mediators, on the other hand, can help parties come to much more detailed agreements. If we’re able to talk to both parties, we can get a fuller story, and maybe we discover that Alfred just flat out doesn’t have the money, but does have a car that would suit many of Betty’s needs. Betty, of course, is skeptical but would be interested in the car, presuming her mechanic says it’s in alright condition. Alfred might have had a bad experience with that mechanic, but could nominate some others that could do a fair inspection.

In mediation, we go into all of this, and can help Alfred and Betty to create an agreement that specifies that the replacement car goes to Carmen the mechanic for inspection, then, presuming Carmen signs off, over to Betty, and, if all goes well, the case is done. Both parties got an agreement they can really do, no one got entirely burned, and, most importantly, no one has to come back to court in a month.

When considering mediation, it’s a good idea to check out your local county’s Small Claims court, the proceedings of which are often on Zoom. You’ll hear the courts rush parties through complicated disputes and you’ll often see that the parties that win don’t look terribly happy; the reason why is that the court can only grant limited relief, and it’s very hard to get at a realistic solution. In court, a maximum of one party can win, and they may not get a victory worth having. In mediation, both parties win, and we pride ourselves on mediation agreements that wrap everything up and let the opposing parties get on with their lives.

Court-Ordered to Mediate

Many cases end up in mediation because the court ordered the parties to mediate. Generally there are two options here, either court-conducted mediation, or private mediation. The rest of this post refers to the process for both, so will be useful regardless of how you got here.

Court-ordered mediation is essentially identical in process, except that, at the conclusion of mediation, the mediator will fill out and sign forms to prove to the court that mediation occurred. If a partial or entire agreement was reached, the mediator will so report to the court.

In California, mediation is confidential, and so there is no further report aside from, mediation happened, and agreement was reached, or not. Mediation is also without prejudice, meaning that having gone to mediation doesn’t prevent you from making any further claims of any sort in your court case. The other party is also not able to introduce evidence of anything you said in mediation, which is one of the reasons mediation works so well.

If your court case is already in progress, your attorney, if you have one, may or may not be present at mediation, but most of the talking will be done by you. The mediator will still work to get to the key elements of the case, and will help the parties get closer to a mutual and realistic agreement. Mediation works best when the parties to a dispute are as honest as they can be, and the court and evidence rules in California are set up to encourage this. Our experience makes it much easier for us to work with the relevant attorneys for a court-ordered case, and can save both parties a great deal of money by finding solutions, full or partial, that would be very difficult if not impossible to find through litigation. For these reasons, and the generally affordable nature of our services, we think we’re an excellent choice for court-ordered mediation.

Mediation in Divorce

Mediation is becoming more and more popular, and in fact obligatory, in many types of cases, but the classical use is in divorce. When a married couple no longer wants to stay married, there are many, many issues that need to be settled, and this is where mediation really shines. In California, essentially every divorce, called a dissolution at law, will go through some form of mediation, and here’s why.

First, the court is very, very busy, and divorces are what we call fact-intensive. Imagine how you would go about proving that you paid for more than half of a car purchased during marriage to a disinterested and harried courtroom; it’s hard, and it takes a long time, and there are generally a great number of assets and liabilities of a couple, each of which would need documents and testimony.

Second, the questions to be answered during a divorce are themselves difficult. Who contributed more to a family business, when one party put in more hours and the other put in more money? Who should the kids stay with most of the time? What about a painting that has great financial value to one spouse but huge emotional value to the other?

Mediation is the perfect tool to resolve these issues. Unlike a court, we can take as long as it takes to talk to both parties and find where there are agreements and how the relationship can be resolved, today. It’s not at all uncommon for a contested divorce to take multiple years in California, and by the end of such a case, there will be a lot less to divide. Mediation, though, can get at the root disagreements quickly and with much less expense. We can talk to both parties, not just the one a lawyer could represent, and we can craft agreements that are much more nuanced than the court has time for.

We often get parties who are convinced that their case in particular is just too nasty to mediate. Let us save you some time: the court is going to order you to mediate anyway, and it’s likely that we’ve seen cases that are plenty worse than yours. We hire mediators who’ve worked in the courts, and not just family law. In California even custody cases with related restraining orders and criminal charges are required to go to Family Court Services, a form of mediation, and even very difficult cases benefit from having a party, the mediator, who can talk to both sides and see if some agreements are possible.