What if she misses mediation.

[Pony1]

Hi,

I'm from California. I'm involved in a custody case with my daughter and ex girlfriend. It's been dragging out for a long time now. We've been to mediation twice and thought it was resolved, but there were lots of details left out. I kept submitting my proposed changes but she would not accept them. Every time a trial date approaches, her lawyer ends up continuing the date. We have 2 months until the new trial date and I proposed that we return to mediation again, because sending back and forth through the lawyers was getting expensive. However, my ex told me that she could absolutely not afford to miss any more work. My question is, what happens if she refuses to go to mediation once the mediation date is set? Can she send someone in her place? Can I go by myself and talk to the mediator? Does she forfeit anything? Thanks for your input...

[I AM ALWAYS LIABLE]

My response:

Whether the nonappearance was "willful" is to be determined by the court, but the court may consider the mediators' findings on that issue. The nonappearing party has the burden of proving his or her failure to appear was not willful. Similarly, failure to participate in the mediation may estop a recalcitrant parent from being heard on his or her custody/visitation request. The mediator can make his/her recommendations to the court for custody/visitation based upon the testimony of the attending parent, and the non-attending parent will have to accept the final order of the court. She sits there in court, cries and wails, stomps her feet, and then remains silent on the issue, while you get all the "rights" and she gets virtually nothing.

By failing to appear at mediation, she has waived her ability to contest any findings and order of the court.

Then, as you both walk out of the courtroom, you quietly whisper to her, "You know, it's just too freaking bad you didn't want to appear and mediate this matter. You only have yourself to blame, and my heart bleeds for you."

IAAL

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By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."



[This message has been edited by I AM ALWAYS LIABLE (edited October 17, 2000).]

Another thing to consider. If your proposed changes aren't to far out of line, the mediator may act on and recommend them, in the report back to the court. The mediator holds the heavy hand in this process. Her unwillingness to meet may also be that she feels she is losing and so she will try any excuse to prolong the issue until you screw up and give her something new to focus on. Keep a cool head and you should do well.

[LegalBeagle]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by I AM ALWAYS LIABLE:
[b]Whether the nonappearance was "willful" is to be determined by the court, but the court may consider the mediators' findings on that issue. The nonappearing party has the burden of proving his or her failure to appear was not willful. Similarly, failure to participate in the mediation may estop a recalcitrant parent from being heard on his or her custody/visitation request. The mediator can make his/her recommendations to the court for custody/visitation based upon the testimony of the attending parent, and the non-attending parent will have to accept the final order of the court. She sits there in court, cries and wails, stomps her feet, and then remains silent on the issue, while you get all the "rights" and she gets virtually nothing.

By failing to appear at mediation, she has waived her ability to contest any findings and order of the court.
[/b]<HR></BLOCKQUOTE>

Is this a CA thing ? ie, that details of failure in private mediation can be taken into court and used ?

In Florida, unless the mediation is court ordered, failure in private mediation means that you go to court fresh. ie, nothing that went on in mediation can be used in court. Therefore, if he was to setup mediation and she did not turn up, then when they finally get to court, everything it started from scratch..

[I AM ALWAYS LIABLE]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by LegalBeagle:
[b] Is this a CA thing ? ie, that details of failure in private mediation can be taken into court and used ?

In Florida, unless the mediation is court ordered, failure in private mediation means that you go to court fresh. ie, nothing that went on in mediation can be used in court. Therefore, if he was to setup mediation and she did not turn up, then when they finally get to court, everything it started from scratch..

[/b]<HR></BLOCKQUOTE>

My response:

Mediation is not "arbitration". This difference is clear - - that is, a mediator's job is to help "the parties" come to their own agreements and to show the parties the good and the bad of their arguments and decisions. An arbitrator, on the other hand, listens to the arguments of the parties and makes a decision. Such decision is NOT allowed into evidence. However, the report of the problems remaining with the parties are, in fact, reported to the court for evidentiary purposes - whether ordered or voluntary. That is the purpose of the mediator who, based on his "findings" (as opposed to making a decision) will inform the court of what happened at the mediation, including who did, and who did not appear. The mediator can only make recommendations to the court (which, in theory, cuts down on court trial time) and the judge either accepts or rejects some or all of the recommendations of the mediator.

I think, though I'm not sure, you may be confusing "mediation" with "arbitration" - and with the latter, the parties are allowed a "trial de novo" or, "new trial" of the issues. A mediation has no such rule. A mediator (whether appointed or voluntary) merely reports on the problems of the parties, and makes recommendations to the court concerning the issues.

I think this answers your question, but please let me know.

IAAL

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By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."

[LegalBeagle]

The reason I am confused is that I had read Chapter 44 of the Florida Statutes which details Mediation and Arbitration.
44.102(3) states,

(3) Each party involved in a court-ordered mediation proceeding has a privilege to refuse to disclose, and to prevent any person present at the proceeding from disclosing, communications made during such proceeding. All oral or written communications in a mediation proceeding, other than an executed settlement agreement, shall be exempt from the requirements of chapter 119 and shall be confidential and inadmissible as evidence in any subsequent legal proceeding, unless all parties agree otherwise.


and then I had read about HUDSON V. HUDSON, 600 SO. 2D 7 (FLA. 4TH DCA 1992) where the former wife introduced into the dissolution proceeding some of the matters discussed and tentatively agreed to in the mediation process. This went against Chapter 44.102(3) of Florida Statutes. On appeal, the trail courts final judgement of dissolution of marriage was vacated, and the matter tried again.

[I AM ALWAYS LIABLE]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by LegalBeagle:
[b]The reason I am confused is that I had read Chapter 44 of the Florida Statutes which details Mediation and Arbitration.
44.102(3) states,

(3) Each party involved in a court-ordered mediation proceeding has a privilege to refuse to disclose, and to prevent any person present at the proceeding from disclosing, communications made during such proceeding. All oral or written communications in a mediation proceeding, other than an executed settlement agreement, shall be exempt from the requirements of chapter 119 and shall be confidential and inadmissible as evidence in any subsequent legal proceeding, unless all parties agree otherwise.


and then I had read about HUDSON V. HUDSON, 600 SO. 2D 7 (FLA. 4TH DCA 1992) where the former wife introduced into the dissolution proceeding some of the matters discussed and tentatively agreed to in the mediation process. This went against Chapter 44.102(3) of Florida Statutes. On appeal, the trail courts final judgement of dissolution of marriage was vacated, and the matter tried again.

[/b]<HR></BLOCKQUOTE>


My response:

Well, then there's an obvious difference betweeen Floridian and Californian mediation practices, procedures and laws. Since our writer is in California, and I practice in California, then that's what I based my response on.

Floridian law, in this regard, is interesting. It appears that there's no real deliniation of the duties of, and purposes for, arbitration and mediation which, by common definition are supposed to be different. Otherwise, why call one procedure mediation, and the other arbitration?

I guess, what I'm saying, is this: Whether ordered or voluntary, what would be the purpose of mediation if the mediator cannot report (Florida law) the findings and problems of the parties? In California, the purpose of mediation is to allow a shorter trial time, and to allow the judge to make a decision whether the recommendations should be adopted, or to send the parties back out to mediation and try again.

In other words, if the purpose of mediation is to cut down on trial time, and the judge's hands are tied from knowing where the "kinks" are between the parties, it would appear that mediation could, and would, be a waste of time for all concerned, and to merely take up all the issues in one forum - - in trial, and let the judge render a ruling and order at that time.

I guess, by comparison, the law in California is to "let it all hang out" after mediation and let the judge make a decision based upon the mediator's findings.

Oh well, I imagine this is all a part of "States' Rights" in action. Each State can set it's own standards and rules.

IAAL


------------------
By reading the “Response” to your question or comment, you agree that: The opinions expressed herein by "I AM ALWAYS LIABLE" are designed to provide educational information only and are not intended to, nor do they, offer legal advice. Opinions expressed to you in this site are not intended to, nor does it, create an attorney-client relationship, nor does it constitute legal advice to any person reviewing such information. No electronic communication with "I AM ALWAYS LIABLE," on its own, will generate an attorney-client relationship, nor will it be considered an attorney-client privileged communication. You further agree that you will obtain your own attorney's advice and counsel for your questions responded to herein by "I AM ALWAYS LIABLE."

[LegalBeagle]

[QUOTE]Originally posted by I AM ALWAYS LIABLE:
[b] Well, then there's an obvious difference betweeen Floridian and Californian mediation practices, procedures and laws. Since our writer is in California, and I practice in California, then that's what I based my response on. [/b]

Yes, I replied because I was curious. I was not aware that results from voluntary mediation could be used in court.

[b]I guess, what I'm saying, is this: Whether ordered or voluntary, what would be the purpose of mediation if the mediator cannot report (Florida law) the findings and problems of the parties? [/b]

I can understand the difference between ordered and voluntary, but I see no point in ordered not being allowed to report back *unless* there is an agreement.

Oh well.. interesting all the same..
Thanks.

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Pony1:
[b]Hi,

I'm from California. I'm involved in a custody case with my daughter and ex girlfriend. It's been dragging out for a long time now. We've been to mediation twice and thought it was resolved, but there were lots of details left out. I kept submitting my proposed changes but she would not accept them. Every time a trial date approaches, her lawyer ends up continuing the date. We have 2 months until the new trial date and I proposed that we return to mediation again, because sending back and forth through the lawyers was getting expensive. However, my ex told me that she could absolutely not afford to miss any more work. My question is, what happens if she refuses to go to mediation once the mediation date is set? Can she send someone in her place? Can I go by myself and talk to the mediator? Does she forfeit anything? Thanks for your input...[/b]<HR></BLOCKQUOTE>

Let me see, you've been to mediation twice, this has dragged on a long time, and attorney's fees are mounting. Yes, I can see her going into court and explaining in detail why she was unable to attend meditation... again. On top of which, she may even be able to get a letter from her employer explaining that they were going to fire her if she was absent one more time. Just a thought.

Tig



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<BLOCKQUOTE><font size="1" face=" Arial, Verdana, Helvetica">quote:</font><HR>
I am not a lawyer. Any information relayed is merely my own experience or research.

[b][i]"PRINCESS, HAVING HAD SUFFICIENT EXPERIENCE WITH PRINCES, SEEKS FROG."[/i][/b]
<HR></BLOCKQUOTE>