Confidentiality in the Evidence Code
One of the benefits of mediation is that it is confidential, keeping your private family issues private. Where issues brought to court are recorded and available, everything said and worked on in mediation is protected and confidential. The California Evidence code as well as a number of court cases ensure that mediation lets you keep your privacy.
When you go to court, the information you present and the things that you say are stored in the courthouse for years to come. Your children could go to the court and find out everything that was said during a contentious divorce; your personal issues are on the record in court. California Evidence Code Section 1119(c) states, “All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.” Sections 1119(a) and (b) cover things said and writings made during the course of mediation, stating that they cannot be used in court cases. Plainly speaking, what happens in mediation stays there and cannot later be used against you in court.
Evidence Code sections 1120, 1121, 1122, 1123, and 1124 cover what CAN be used in court from mediation. What can be used in court is the fact that a mediator was contacted, a binding and enforceable agreement, and anything that all parties agree are admissible and not covered by confidentiality. Confidentiality covers everything until the end of mediation, according to Evidence Code section 1125, which sets out how mediations can be ended either with or without an agreement. Section 1126 states that anything that was confidential during mediation is also confidential after mediation ends. As far as information about what happened in the process of mediation, that information is controlled by the people involved to disclose or keep private. Mediation allows you to have your conflicts in private, rather than dragging them through public in court.
What does mediation cost?
Most cases are handled for a flat fee that includes the preparation of all the court forms and other paperwork required to obtain a judgment. The fee depends upon the number of issues or subjects that we must resolve. For example, some issues are:
- What will happen to the family home?
- How much for alimony?
- How much for child support?
- Who gets the kids?
- I want the money back that my folks gave to buy our house.
- Who gets the pension? I had it before we got married.
We provide a reasonable flat fee for these issues. That includes four (4) mediation sessions, each of two (2) hours and the preparation of all documentation for both husband and wife. It works out to less than the initial retainer is most competent family law offices for one client.
Of course, not all cases have children and not all couples have houses. That makes the mediation shorter and it costs less. In some cases we get different issues:
- One spouse was running a business for years before the marriage and it really took off during the marriage.
- One spouse had the house before the marriage but it was remodeled during the marriage.
- What will we do with these debts? Some were around before the marriage and we paid those down.
Some cases do not involve a full divorce and only have one issue, such as, the child is now 16 and wants to live more over here. “Help us with child support.”
Hourly mediation with simple paperwork or no paperwork is very reasonable. We usually request that each spouse contribute one-half the amount.
Isn’t this the same as using one lawyer to do everything?
No. A lawyer must represent a client zealously. It is impossible for one lawyer to “advise” both parties zealously. This is an elementary conflict of interest.
In mediation I help the parties find their own solution. I do not force anything upon them, nor do I suggest a pre-arranged solution. I simply help them to communicate.
In my mediation we stop at the point that we have a sound agreement. Before anyone is bound, I put that information into a “memorandum of understanding.” Each spouse is encouraged to take that memo to their own independent attorney for review and approval. Then the marital settlement agreement (MSA) is prepared and the husband and wife have a second chance to get that independently reviewed and approved.
What is the hardest part about this?
The hardest part about mediation is educating the public that they do not need to go through a traditional divorce down in divorce court. I find it hard to overcome the fears that people have which drive them to be aggressive and pay a large sum of money to protect the “rights of men” or “father’s rights”. Conversely it can be hard to convince people that you do not have to rough up your spouse to obtain fair and legal support.
What is the best part about this?
- You don’t have to worry about whether the judge will like you.
- You don’t have to say nasty things about someone you loved.
- You don’t have to worry about the kids, the house, or how much money you will have because you will be part of the process.
- You don’t have to put your life in the hands of a stranger, a judge, who will hear your story and make court orders based on an argument that lasts 20 minutes or less.
- You don’t have to go wait in line.
- You are protected by your actions, not in danger.
You may make an appointment to come in alone or with your spouse.
The financial material you gather now will help move mediation along. Begin to copy everything so that your spouse will have a full set of documents in original or in copies.
If you and your spouse decide to go with mediation, then you will be provided with more materials at the beginning that specifically apply to the issues involved in your case.