Submitted On January 28, 2012
Is A Divorce Mediation Settlement Legally Binding?
Yes, either the mediation will close with a signed agreement, or if attorneys are representing the parties they will commit to ending the lawsuit with a formal settlement and release agreement. We always recommend a formal 
agreement is prepared before the parties leave the mediation. Some courts require that process, particularly if a case in litigation is required to go to mediation prior to the commencement of the case.
What if we can't reach agreement? You are free to return to the conflict, or if litigation has not commenced, to bring your matter to litigation or arbitration, if you choose to do so. The mediation process you have gone through remains confidential, and your mediator cannot be called to testify in court, if you choose to litigate after mediation. In fact, all parties, their attorneys and anyone else who may participate in the mediation process are obligated to keep every aspect of the mediation confidential. The only information that will be disclosed is information that either of the parties give their permission and approval to the mediator or anyone else to disclose.
In mediation the parties have total control of the process and outcome. Mediators are experts in moving the process along, but not decision-makers. The actual decision makers are the parties themselves. A mediator will help parties to reach agreements, but cannot compel or dictate the terms of settlement. This means if you choose to settle the entire matter or certain issues during the mediation process and the other side does also, your matter will be resolved and you will not have to go through the expense and pain of litigation of either the whole case or at least those issues that you have, by agreement, narrowed. Do I need an attorney? Not necessarily, and many times attorneys can be very expensive and impose their own will on your case or issues. I am a practicing attorney, but I, quite frankly, got tired of being referred to as a "bulldog", "Pit-bull", "A-hole" and litigating for my clients who, in many cases only filed lawsuits to force settlements regardless of the true facts. I eventually realized this wasn't what I went to law school for. I wanted to be more altruistic so I decided rather than be part of the problem, to be part of the solution. Mediation gave me the opportunity to be a non adversarial attorney with "no skin in the game" so I could help direct the settlement process. Some attorneys will help you do this, but most litigators I have usually found will not. Without spelling out the reasons, I am quite confident you can guess what they are. Is there a role for my attorney should I have one? Your attorney can play an important role if he/she is in favor of the mediation process, by advising you, clarifying legal issues, and helping to draw up agreements, although we provide the same services for far less money. We are accustomed to working closely with parties and their attorneys to further the shared goal of resolution. Do we receive a percentage of the settlement? No. Mediators work on an hourly fee basis. This fee can be paid by one or both parties, in any allocation agreed upon. In some cases a fixed fee rate can be agreed upon instead.
We offer a unique way of mediating your matter. By offering you the opportunity to utilize the talents of our mediators in a cross gender, cross faith, cross disciplinary based-approach, you are able to have a highly unique form of mediation not found in other mediation services. You can receive both a male and female perspective on a matter from professionals who differ in several ways, each of which is highly beneficial in the settlement process. Our male mediator is an attorney with over thirty-three years of litigation experience. He has participated in hundreds of mediations and is a recipient of a Certificate of Mediation from Pepperdine University's Strauss Institute. He is also a current or past board member of several Christian organizations as well as a past member of his church council. He brings to your mediation a unique approach to conflict resolution. Our female mediator has a Master of Dispute Resolution from the Strauss Institute at Pepperdine and is uniquely qualified in all aspects of mediation, from marital and child custody, to animal matters and she hold a real estate agents license. She is versatile and broad based. Her eleven years of experience within the court system and in private practice, allows her to offer a layperson's perspective of the advantage of the mediation process.
So, if you want to spend far less money, attempt to resolve your cases quickly, have a chance of maintaining a relationship, particularly in divorces with children, the only thing that makes good sense is mediation. In summary, you and those in conflict with you are the arbiters of your own issues and case; you and those in conflict with you have a referee who is impartial and will bring to the table lessons learned through mediation courses, cases he has been involved with on behalf of clients, and who greatly appreciates the process and has tools to help move the process toward resolution; you and those in conflict with you hold the keys to whether or not you settle the entire matter, some issues, or nothing at all.
Mr. Eichberg is a founding partner of Southern California Mediation Partners, LLC. (SCMP) assesses the distinctive aspects of each case and may recommend a short process or a series of meetings. The process may start with private, separate interviews of each party (a caucus), or a session attended by all parties (joint session). For more information about the mediation process please visit my website: [http://www.scmp-mediation.com]
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