Our firm offers couples considering mediation an initial free consultation. During the consultation, we will explain the mediation process and answer any questions you have. Both Husband and Wife should attend the initial mediation consultation together.
Mediation is generally the best approach when it comes to divorce. In mediation, the two parties hire one neutral mediator. The mediator is typically a divorce attorney. The role of the mediator is to help the parties reach agreements on all issues including division of property and debts, custody, and support. The mediator identifies issues for discussion, assists with the exchange of information and documents, educates the parties regarding the law, and suggests settlement alternatives. Once a settlement agreement is reached, the mediator drafts the Marital Settlement Agreement, the Judgment of Dissolution, and all of the court forms that are needed to process the matter as an uncontested dissolution. If the matter is resolved through mediation, all of the paperwork can be processed by the mediator through the court system without the need for either party to appear in court.
The mediator is not an advocate for either party. The mediator is impartial. In mediation, the mediator has no power to decide disputed issues. Issues get resolved by mutual agreement of the parties. Mediation is not arbitration. In arbitration, a neutral decides issues. In mediation, the mediator’s role is to facilitate the process of making agreements. Sometimes, the mediation process is not successful. At anytime, either party can immediately stop the mediation process. If the mediation process is stopped, the mediator is prohibited from representing either party in any subsequent litigation.
Mediators have different styles. Our style is to provide our clients with lots of information. We carefully explain to the clients, in plain English, what the law is and what the likely result would be for a disputed issue if the parties were to litigate that issue. For example, we will explain exactly how the court determines the amounts of child support and spousal support. We will run support calculations, including all the variables. We will tell clients how much support a court would likely order in their case if the matter were litigated. The clients are then free to agree to typical support amounts and durations or to agree to a different support arrangement based on what works best for them.
Because our mediation style is to provide our clients with lots of information so they are fully informed as to the law and their rights, most of our clients do not hire outside consulting attorneys. They feel comfortable that they are already well informed.
Some parties participating in mediation will hire a consulting attorney. The consulting attorney can attend mediation sessions, but usually does not. Clients oftentimes hire our firm as consulting attorneys when they are involved in the mediation process. As a consulting attorney, we will coach our clients as they mediate issues. For example, if a client is going to meet with a mediator to discuss support issues, we will first meet with the client and fully educate them on support related issues. We will tell them all of the facts and arguments that they need to make to the mediator in support of their position. We will tell them what a fair support number is so that, during mediation, they can recognize when a settlement proposal made in mediation is a good deal, fair deal or bad deal. In addition, as a consulting attorney, we review draft settlement agreements that another mediator has prepared to ensure the client fully understands the terms of the settlement and to point out any provisions that may be unfair or otherwise inappropriate.
There are numerous benefits to mediation:
Lower costs: When the parties use mediation, they are typically splitting the cost of one attorney (the mediator), instead of paying for two attorneys. In addition, the goal of the mediator is to assist the parties in reaching an expeditious global settlement (as opposed to two contentious attorneys possibly escalating conflicts and fees). Mediation offers the opportunity for quick resolution. As soon as an agreement is reached, the Judgment of Dissolution and other paperwork can be drafted quickly. The longer the divorce process takes, the more expensive it will be. In litigation, when you are scheduled for a hearing date, you are paying your attorneys to travel to court and wait for your case to be called by the judge. It is not uncommon to be scheduled for an 8:30 a.m. court hearing, only to wait two hours or more before the court is ready to hear your case. The divorce court system is very inefficient and therefore expensive.
Mediation is confidential: Divorce litigation is open to the public. Anybody can go to any of the divorce departments in Martinez and watch hotly contested, emotionally charged divorce proceedings. Private information, both personal and financial, is discussed in open court, usually in the presence of dozens of strangers waiting for their cases to be called. In mediation, confidentiality is absolutely protected by law. California Evidence Code 1119 makes all communications, negotiations, and settlement discussions between participants in mediation confidential. Divorce settlement discussions require the disclosure of very private and sensitive information. Mediation affords the parties the protection of confidentiality. [Note, add link to California Evidence Code 1119]
Clients control the process: In mediation, the parties control the process in many ways. You and your spouse pick a mediator that you like, as opposed to the court system assigning a judge to your case. You control how quickly the process progresses. In mediation, you can elect to meet with the mediator quickly and with short intervals between meetings until a settlement is reached. Alternatively, if one or both parties need time to adjust to the idea of being divorced, then the mediation sessions can be stretched out over a longer period of time. In mediation, you can spend as much time as is needed to negotiate a particular issue. In litigation, you are generally given a set number of minutes, hours or days by the court for a particular hearing. The time is shared with the opposing party. Often, you are unable to present evidence or arguments to the court due to time constraints. In mediation, the parties control the pace and the results because the parties control the decision making processes.
You are directly involved in the settlement process: In mediation, you are always present during the negotiations. The parties meet with the mediator together. Everyone is copied on all communications. In litigation, parties are not always directly involved in the settlement process. In litigation, when the court has a Settlement Conference, the lawyers meet with the judge in the judge’s chambers to discuss settlement, while clients sit in the hall. Clients are then informed by their attorneys that they need to settle on certain terms because that is what the judge indicated during the Settlement Conference. One problem with litigation is that clients often feel they never had a chance to be heard. All the information is communicated with the court through their attorney. They do not get the opportunity to negotiate directly with their spouse because everything has to go through the spouse’s lawyer. In mediation, you sit in the same room with your spouse, explain how you feel, explain why the settlement you have in mind is best for the family and is fair. Direct negotiation with your spouse saves time and money. In litigation, it is frustrating to propose a settlement and then wait weeks for a response.
Mediation saves time: In litigation, you are at the mercy of the judge’s calendar. The litigation process moves exceedingly slowly. It can take more than a year to get a trial date and, if you don’t finish the trial in the time allotted by the court, you may have to wait months before getting a new date to conclude the trial.
Mediation is less stressful: Litigation is about conflict. Conflict negatively impacts social relationships and business effectiveness. Many people have difficulty focusing on their jobs when they are involved in divorce litigation because of the high level of stress. High levels of conflict also affect people’s health. Most importantly, conflict creates stress for the children. One of the main goals of mediation is to reduce conflict by encouraging parties to work with one another to reach fair settlements. It is better for children to know that their parents are working with one another in mediation to negotiate a mutually acceptable settlement, rather than to believe their parents are using their lawyers to battle each other in the courts.
Mediation builds on the positive: The strategy for most of litigation is to exploit the negatives about the other person. You “win” your case by telling the court all the negative information you can prove about the other person. This is not a good approach if, after your case is concluded, you still have to interact with your former spouse, such as continuing to co-parent children. In mediation, the mediator is trained to focus on the positives of each party and to help the parties recognize common ground for settlement purposes.
Mediation is not for everyone: Mediation is not appropriate for everyone. If one or both parties are dishonest and will attempt to conceal assets and income, it may be more appropriate that the parties be represented by independent attorneys that can subpoena records, take depositions, and propound discovery in order to flush out assets and income. Mediation is not appropriate where there is a history of repeated domestic violence.
Final settlement agreement: After a settlement agreement is reached in mediation, the mediator will reduce it to a written contract. Both parties will have ample time to review the proposed agreement and reflect on it until they feel comfortable signing it.
Why mediation may not be for you: Some cases are not suitable for mediation because of safety, control or intimidation issues. If a party has been the victim of domestic violence, then mediation is probably not appropriate because the potential for intimidation makes it extremely difficult for the mediator to insure that mediation produces a fair result.