Mediating Homeschooling Issues

I met with a homeschooling family to resolve their custody, visitation and support disputes. Previously, the parents met with other attorneys and mediators who did not approve of or understand homeschooling and who made the problems between the parents worse. 

 An attorney convinced the father that the children needed to be put in public school despite his support of homeschooling and ten years of successfully homeschooling their academically gifted children together. That attorney told the father that because the children would spend more time with the mother, who was the primary homeschooling and stay-at-home parent, they would bond more closely with her, she would be unable to work, and he would have to pay higher child support. The mother’s attorney said the courts would not approve of homeschooling and there was no alternative except to send the children to public school. The custody evaluator told the parents that he was going to recommend public school because the children needed socialization. 

After being unable to reach an agreement, these parents were referred to me. As a mediator with homeschooling experience, I was able to spend a day with them to explore homeschooling issues and solutions. We discussed the underlying issues, fears, and needs of both parents and children. We discovered that both parents were happy with homeschooling. Moreover, their children desperately wanted to continue homeschooling in order to stay in their homeschooling community.

The parents found solutions that helped both of them have a flexible schedule and gave them each more time with their children than would be possible if the children attended public or private school. Under their plan, both parents became active participants in their children’s homeschooling. This plan gave the father more time with the children and more responsibility for the children’s education. It enabled the mother to pursue her dream career and help with the family finances. The parents left the mediation session as parenting partners and with the tools to help them resolve future conflicts. 

My experience as a homeschooling parent of grown homeschoolers helped me facilitate a mediation session that helped these parents discover the solutions they needed. They found a mutually agreeable result that met their underlying interests. They focused on preserving their relationship and their children’s best interests, rather than "winning," because they realized in litigation there are no winners. They both won under the plan they developed together.

 If you are interested in more information, please check out my website at www.lindajconrad.com and feel free to contact me.

Why Mediation?

Yesterday, I was asked why I mediate when I enjoy the law so much. Easy, it's because there is great satisfaction in helping people in crisis find solutions that also help to preserve business, family and social relationships or help litigants find peace. The real question is why I waited so long to begin.

My mediation practice should have begun in 1963, when I was in Mrs. Asher's fifth grade class at Calabash Street Elementary School in Woodland Hills, California. I was asked by my friends to solve their argument. I suggested they talk to each other with me. They did, and the next time I saw them, they were the best of friends. This, and supporting many friends through many crisis during the tumultuous 60s and 70s, should have directed me towards mediation. But in the 70s, there were no formal mediation studies. 

Instead, I discovered political science in college and was among the first big wave of women to go to law school in the 70s with the idea that the law could help change lives. There were no classes on mediation or settlement theory, so I studied a classical legal curriculum, wrote for the law review, and learned how to write legal briefs and be a litigator. For the next 30 years, I advised, litigated and handled appeals involving issues as diverse as injury and insurance law, construction defects, products liability, multiparty litigation, business planning and disputes, non-profit law, and family issues. The law is many things, and knowing the law helps resolve many disputes, but it is not always fair, does not solve all disputes, and often neither party is happy with the result or the costs of litigation.

When two of my colleagues suggested mediation training, I was skeptical. I was busy with a thriving appellate practice and four children in high school, college and law school. Yet, after my first day of appellate mediation training with Dana Curtis Mediation (danacurtismediation.com) I knew I wanted to be a mediator. Since training, researching, and working as a mediator, I've seen how mediation has the power to resolve disputes, save relationships, and help people find peace.

That is why I mediate.

California's Third District Presiding Justice Vance Raye's Law Day Speech-Honoring John Adams

I just returned to my office after listening to a speech by Justice Vance Raye who is the Presiding Justice of the California Court of Appeal, Third Appellate District. The speech was given for the Yolo County Bar Association Law Day Celebration and it was on the national law day topic, "Celebrating the Legacy of John Adams." The celebration was wonderful with awards ranging from a "John Adams look-alike contest" to the non-lawyer community member who has contributed the most to justice within the community. Another highlight was the knowledge that all proceeds from the celebration were going to the Yolo County Food Bank and Meals on Wheels.

But what impressed me the most was hearing Justice Raye talk about the often unsung heroes of our legal community who, like John Adams, represent folks who no one else will represent because their causes are unpopular. As president of California Appellate Defense Counsel, my colleagues and I are often discouraged by the lack of respect we perceive when we represent indigent persons who have been convicted of crimes or lost their children at the trial level. With Justice Raye's acknowledgment that his heroes included, among others, an attorney who represented unpopular causes involving defendants that no one else would represent, it validated the reason that so many of us went to law school--to help people less fortunate than ourselves achieve justice.

Thank you Justice Raye for highlighting once again that our legal system is first and foremost about justice for all of us, even those of us who do not have power or money. If the justice system does not serve the people who need it most, then it does not serve us all. Congratulations to the Yolo County Bar Association for  making this celebration possible.

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Confidentiality of mediation proceedings affirmed by California Supreme Court

Today, in Cassel v. Superior Court, the California Supreme Court reaffirmed and strengthened the confidentiality of all things spoken or written in connection with mediation proceedings. This confidentiality means that all things said and done during and in preparation for mediation may not be discovered or admitted in any noncriminal proceeding, including civil trials, administrative proceedings or arbitrations. (Cassel v. Superior Court (January 13, 2011 S178914).) As the Supreme Court wrote, candor is "necessary to a successful mediation." It encourages the parties to be honest and open with each other in the interest of resolving their disputes without worrying that anything they say or do during or in preparation for mediation will result in prejudicial use of the information by the other party.

For instance, in one of my mediations, "John" and "Sam" were involved in a dispute that was destroying their long-standing personal and business relationship. After an intense and emotionally demanding day-long mediation, where John was able to candidly tell Sam how the dispute was affecting him and Sam was able to honestly tell John why he took certain actions, the final and crucial factor that made settlement possible was a simple apology.

"I'm sorry," said Sam. And the case settled.

An apology is impossible if it can be used later to imply guilt and responsibility. But full disclosure by the parties culminating in an apology during mediation can settle a dispute as well as, like it did here, reaffirm a business association and reconcile a personal relationship. Cassel v. Superior Court is one of the long line of cases in California that makes successful resolution of disputes and preservation of relationships possible.

Rajmohan Gandhi

Notes from Rajmohan Gandhi's talk in Davis, CA: Building Bridges for Peace: Race, reconciliation, and responsibility. Peace circles. A fleeting thought of ill will is one thing, to nurse ill will is another. The only tyrant I am willing to bow down to is the small still voice.  It has always been a mystery to me that some men feel great due to the humiliation of others. It is more courageous to not be a bully.  A bully has often been bullied. US support is important to help peaceful demonstrations by oppressed citizens of other countries, such as the support given to Gandhi. Best question: What tools are there for the peaceful majority to fight the violent vocal minority. The answer, We need artists to find a creative solution, such as Gandhi's Salt March solution.

My conclusion: The many people throughout the world who are working for peaceful alternatives to violent behavior for solving differences and resolving disputes is inspiring. The growing mediation movement and the use of mediation in all aspects of our lives may be the solution we need. For more about Rajmohan Gandhi see, http://www.rajmohangandhi.com/

Meditation, Mediation or Appeal?

I've been a litigator, appellate lawyer and now also a mediator for 32 years while raising a family of four wonderful children with my lawyer-husband.  Confronted daily with minor to major disputes, I've wondered: What is the most effective way to reach a fair agreement when meditation isn't quite enough?

Attending the California State Bar Convention for the first time in nearly three decades highlights the immense changes in the law since I was one of about ten women lawyers in Kern County. Back then, women were not allowed to go to the two major business venues for lunch and we started what is now the Kern County Women Lawyers Association in an effort to reach out to each other. Back then, the main way to resolve legal disputes was to go to court or arbitrate pursuant to a contract or court order.

Fast forward 32 years and my daughter is now one of many hundreds of woman lawyers in Sacramento County. Women Lawyers of Sacramento and Kern County Women Lawyers Association are two of many legal associations that have been effective in improving the practice for women lawyers and promoting them into judicial positions. Justice Tani Cantil-Sakauye of the Court of Appeal, Third Appellate District has been nominated and approved to be the next Chief Justice of the California Supreme Court and there will soon be a majority of female justices on the Supreme Court!

And disputes are frequently and increasingly being resolved through mediation instead of litigation or appeal. It is the right time for us to rethink our antagonistic ways of resolving disagreements in law as well as in politics.

Mediation resolves disputes and preserves relationships. It facilitates creative solutions that help each party discover and meet their underlying needs which are often quite different than the other party's needs.When a dispute hinges on a legal interpretation of statutory or case law, a court opinion may be needed to provide parties the guidelines they need to resolve their dispute. In those rare cases, the Court of Appeals and the California Supreme Court are invaluable resources to help litigants resolve important issues of law, including constitutional or statutory interpretation and conflicting case law.

Where does meditation fit into the equation? It can focus us on our core values of justice and fairness. Mediation leads to agreements that are fair and benefit everyone. The reviewing courts  resolve important legal conflicts so we can reach a just result.

What is the best way to resolve disputes? Meditate for clarity, mediate for a fair resolution and reconciliation, and appeal to resolve legal issues and interpretations that make justice possible for all.