This article will argue that mandatory mediation offers important benefits, including lightening the overloaded court system and capitalizing on the flexibility and personalization of mediation in certain kinds of disputes. This article will also discuss how allowing the mediator to provide recommendations to the judge after unsuccessful negotiations can shatter the basic tenets of mediation and create an altogether different process for the dispute. Furthermore, it will argue that California’s mandatory mediation statute creates a system more akin to litigation, since the parties are presenting their case to a mediator who wears the hat of both mediator and judge. In light of this pre-litigation nature, this article will propose that the California legislature honor the true definition of mediation and take away the power of the mediator to give recommendations to judges before the parties actually have their day in court.
Mediator or Judge?: California’s Mandatory Mediation Statute in Child Custody Disputes,
17 Pepp. Disp. Resol. L.J.
Available at: http://digitalcommons.pepperdine.edu/drlj/vol17/iss1/1