What’s All This Stuff About Mediation?

QUESTION--Bud, we hear a lot about this process called “mediation.” We understand that you are a “mediator.” What is mediation and what does a mediator do?

ATTORNEY KLUECK’S ANSWER--Mediation is part of alternative dispute resolution, or “ADR.” So what does that mean? Alternative to what? Well, the answer to that is alternative to court resolution, ADR procedures are alternatives to resolving matters in court. The courts favor ADR because our courts are very crowded and ADR helps to relieve some of that congestion.

Research has shown that parties, who resolve their dispute through mediation, rather than going through the courts, are more content with the outcome of the dispute than those people who go through the full course of litigation. One of the reasons for this higher level of contentment is that with mediation the parties themselves have much more control. Someone who is a party to a dispute obviously has a much greater personal “investment” in the result than a judge. The parties to the dispute are the ones that are going to have to live with the outcome. In mediation, unlike in traditional litigation or lawsuits, the parties can create “customized” outcomes that judges do not have the power to order. The parties can fashion a creative solution that meets their individual needs and goals. The courts lack the time and power to do so. I think we can all agree that we are much more content when we feel like we have some control over our affairs. Mediation is really about allowing the parties to the dispute to have a greater degree of control over the outcome while still providing safeguards to ensure that a party with a “smaller” voice still has a fair chance to be heard.

QUESTION--Bud, in addition to “mediation” we hear a lot in the media about “arbitration.” What is the difference between mediation and arbitration?

ATTORNEY KLUECK’S ANSWER--Both arbitration and mediation are very popular forms of alternative dispute resolution. But they are different and it is important to differentiate between them. In arbitration, the arbitrator is like a mini-judge. He or she is a neutral third party who makes the decision regarding the dispute, just as a judge or jury would in a traditional lawsuit. However, arbitration is less formal and less expensive than going to court. The rules regarding evidence and procedures are more relaxed. For example, in arbitration the arbitrator can consider a doctor’s report without actually having the doctor physically present. In court, in order for the judge to consider that same doctor’s report, that doctor would generally have to be physically present. Paying for an expert to come to court can obviously be a big expense!

In contrast to arbitration where the arbitrator makes the decision, in mediation the mediator is a neutral third party who assists the parties in reaching their own decision. The mediator can help each party to hear the other’s point of view, explain what the relevant law is and that sort of thing. The big difference in mediation though is that it is the parties, and not the mediator, who make the decision.

QUESTION--So, in mediation during the process is it just the mediator in the room with the parties?

ATTORNEY KLUECK’S ANSWER--Mediation is a very flexible process and the parties make the decision as to what format they will use. Sometimes just the parties and the mediator are present in the room. Sometimes the parties and their attorneys are all in one room along with the mediator. Other times the parties and the mediator might be in the room and the parties will consult with their attorneys who are behind the scenes, perhaps standing by via telephone.

I myself have worked many different types of mediation and worked in pretty much every role, I’ve acted as the mediator in many cases, consulted as an attorney in others. I am credentialed by the National Dispute Resolution Center.

QUESTION--So if our guests want to get in touch with you, about mediation information or any family law matter, how can they reach you?

ATTORNEY KLUECK’S ANSWER--As always, you can reach my office at (619)448-6500 or visit our website at www.familylawsandiego.com.

QUESTION--And now for something a little more serious—Bud we understand that your Dad passed away recently and that you wanted to say a few words about him.

ATTORNEY KLUECK’S ANSWER--Yes. Thank you for the opportunity. My Dad passed away on November 2, which Christians call “All Souls Day” or “El Dia de los Muertos” in Mexico. Dad passed away peacefully at Grossmont Hospital surrounded by his family. I just want to say that he was never in TV or radio, unlike his son, but he was a remarkable man who read more books than anybody I ever met outside of academia. We attended lots of Aztecs games together and I will miss him every day of the remainder of my life. Thanks you for the opportunity to talk briefly about my Dad.