By definition, a divorce breaks a family into pieces. The members of that family often have their own ideas of how that break should work out, but their ideas will likely differ from one another.
Resolving those differences can be costly in both time and money, as well as in emotional and relational strains. Sometimes, the only resolution is an imposed resolution – a judge’s decision dictating the outcome. In such cases, the process can be ugly: attorneys and other professionals are duty-bound to vigorously argue their client’s case, often resulting in a contentious environment that fertilizes the soil for the growth of bitterness and resentment. The judge’s decisions will likely be fair by objective standards, but they will probably not be entirely satisfactory to either party. How could they be? Well, each case that the judge must adjudicate is just one of the hundreds or even thousands that they will work on, and they cannot afford to thoroughly investigate all the subjective details presented in each case.
Divorce mediation can be a viable alternative, allowing the important decisions about property division, alimony, child custody, and child support to be made in an environment that is less combative, more personalized, and takes into greater account the subjective thoughts and desires of both parties. Not to mention, it saves a lot of time and money, too.
In divorce mediation, the couple meets with a neutral third-party who is trained to facilitate communication between the divorcing spouses and to guide their discussions on these important issues to successful and mutually agreeable resolutions. While they may make suggestions, they do not offer legal advice. Above all, they do not make any decisions themselves; instead, they help the couple to make their own decisions and then document those resolutions to be later submitted as a part of the overall divorce settlement.
While mediators can be “attorney mediators,” meaning that they are also trained in family law, they do not have to be. Many mediators are accountants, psychologists, social workers, therapists, or other professionals pertinent to a divorce situation.
Mediation services are costly, though they are usually much more affordable than going through litigation. The process can also be much more flexible and work around each party’s schedule rather than being limited to the court’s schedule. It can, therefore, also yield results faster than a court hearing. Indeed, a successfully mediated divorce may be fast-tracked and finalized in just a few months.
Another advantage of mediation is its confidentiality: only the necessary records and final divorce settlement are deposited into the court’s publicly accessible data bank. The information shared and supporting documents used to reach the settlement decisions are kept out of the public eye.
Finally, because the spouses are communicating with each other and learning to make mutually agreeable decisions, their post-divorce relationship will often be much more cooperative. This is especially crucial if there are children who require their co-parenting.
All of these factors can combine together to give divorce mediation an advantage by reducing stress and thus enabling each spouse to move on and rebuild their life.
It should be noted that there are some circumstances in which mediation is not advised. If there is a history of violence, abuse, or bullying, or if there are strong reasons not to trust the word of one of the spouses, mediation may actually be more traumatic than a court hearing. Consultation with a family law attorney is strongly advised in such circumstances before agreeing to a divorce mediation process.
The divorce mediation process
Mediation can begin before, during, or even after divorce if the couple discovers that something was missed during the process. If mediation occurs before the divorce papers are filed, it is possible to file an “uncontested divorce,” meaning that all necessary decisions are already agreed to and can help fast-track a judge’s final approval.
The actual process of mediation begins with selecting the mediator – a decision that the couple must make on their own. An internet search can quickly return a list of local mediators, or if that route seems too risky or overwhelming (so many choices!), the court can also provide information. However, personal recommendations from friends and family that have used mediation services are usually the best option.
When choosing a mediator, it is wise to find one with the training and skill set necessary to meet the specific needs of the case. For instance, if there are complex assets but no children, a mediator who is a financial professional would be preferred over one who is a child psychologist. It is also important that the mediator not be in any way connected to either party to avoid a conflict of interest, which would impede their ability to maintain their objectivity and neutrality.
Once selected and before the mediation itself begins, the couple will usually be instructed to provide all pertinent information for the matters that will be decided upon. Such information may include their property inventory (lists of what is separate property and what is community property), financial disclosures, any records that would impact decisions on child custody and support, etc. It is imperative that each couple agree to operate with complete transparency and not hide any information that may sway the direction of a discussion.
Depending on the specific needs of the case, the mediator will schedule a certain number of mediation sessions, and each session will focus on a particular question or questions to be resolved. Typically, each spouse will first be given time to present their perspective and desires. The mediator will ensure that each spouse understands the position of the other spouse and will usually try to find and highlight points of common ground. They will then focus on the areas still needing resolution. They will ask questions and make suggestions, not to drive toward a specific conclusion but simply to expand the couple’s “thought box” and allow them to discover their best and most creative resolution.
Once particular decisions are agreed upon, the mediator will draft a “Memorandum Of Understanding” (“MOU”), which, once signed by each party, will be incorporated into that portion of the final divorce settlement.
Family law attorneys and divorce mediation
Many mediators resist having attorneys present during the mediation sessions. If they do permit attorneys, they usually require that both parties have one present to ensure equal representation and fairness. However, attorney advice is often encouraged throughout the process (before and/or after each session) to ensure that the individual is well-prepared and hasn’t overlooked anything. A mediator will also typically advise their clients to take their MOUs for their attorney’s review before signing them.
At Silva and Associates, this is the role we play in mediation. We are not mediators ourselves but rather function as “mediation coaches,” and as such, can suggest which mediator may be best suited for the specifics of our client’s case. We then consult with our clients on the front end, helping them think through issues so that their negotiations proceed smoothly and nothing is overlooked. As the mediation proceeds, we help the client assess proposals that are provided by the other side and provide ideas and frameworks for their own. We, and our team of experts, will help you assess the fairness and effects of different scenarios. Finally, we review their decisions with them before they are finalized, ensuring that they are truly satisfactory.
If you are contemplating or are in the midst of a divorce, contact us today, and let us explore your options for a successful and satisfactory settlement with you, including whether a mediation might be part of your toolbox.
Divorce Mediation FAQs
Q: What is mediation, and how does it work in a California divorce?
A: Mediation is an alternative dispute resolution process where a neutral third-party, known as the mediator, facilitates communication and negotiation between divorcing spouses. In California, mediation allows couples to work together to reach agreements on various divorce-related issues, such as child custody, property division, and support matters. The mediator does not make decisions but helps the parties find common ground and craft mutually acceptable solutions.
Q: What are the benefits of choosing mediation for my divorce in California?
A: Opting for mediation in your California divorce offers several advantages. It is often more cost-effective and time-efficient than going to court. Mediation fosters open communication, promotes cooperation, and allows you to have more control over the outcome, as opposed to leaving decisions to a judge. Additionally, mediation can reduce conflict and is particularly beneficial when you and your spouse aim to maintain an amicable relationship for the sake of any children involved.
Q: Is mediation mandatory in California divorce cases, or is it optional?
A: Mediation is not always mandatory in California divorce cases. However, some counties or courts may require couples to attempt mediation before proceeding to litigation. It’s essential to check with your local court rules to determine if mediation is mandatory in your specific jurisdiction.