It has been in the public domain that almost 50% of marriages end up in divorce for one reason or the other. Popularly, as seen in TV shows and films, most divorce disputes are taken to court for a judicial resolution. However, quite a number are successfully resolved without ever having to be brought before a judge. They are resolved through mediation.
So What Exactly Is Mediation?
Basically, mediation is an informal process in which a mediator (a neutral third-party) meets with the parties in dispute in an effort to resolve the dispute. The mediator, often a trained attorney, listens to both parties, evaluates the evidence/information before him or her and tries to work with the couple to find a solution that will be agreeable to all.
The main objective of this alternative form of dispute resolution is to find creative solutions and settlements in an environment where the parties are comfortable and non-adversarial.
The process is voluntary. Both parties voluntarily agree to resolve the case through mediation and through a mediator they both agree on. The mediator can’t force either party to agree to anything, neither are the parties obligated by law to agree to anything. Most parties that choose mediation, do so because it saves them plenty of money. Trial costs are often expensive, whereas mediation costs are often significantly lower.
Though most cases can be resolved through mediation, some are more particularly suited for this alternative form of dispute resolution. If you are involved in a divorce case, a mediator can help you to quickly reach an amicable solution with your partner within a day or a week as opposed to having to drag your soon to be ex-partner through months of family court proceedings and having to pay thousands of dollars for it.
How Does Mediation Differ from Litigation?
Litigation is the regular court process. It is the most recognized and the primary legal mechanism of dispute resolution. The main issue is that it is often not perfectly suited for divorce proceedings. Court litigation is aggressive, adversarial in nature and can cause emotional pain. This is in contrast to mediation, which is personal, informal and can quickly put this sad chapter of your life behind you. Mediation is also a more affordable way to resolve disputes as opposed to litigation.
What Does the Law Say About Mediation?
The judicial system of California recognizes out of court separation. It recognizes that alternative dispute resolutions such as mediation can save you time and money and minimize emotional distress.
The main law that guides mediation in California is the Mediation Code. It is part of the Evidence Code chapter and it legally governs mediation in family, agency actions, community, labor-management, the environment, civil actions and insurance disputes.
The Code defines mediation, says who can conduct it, and forbids mediators from using whatever information they found out through mediation in subsequent court proceedings (should there be any).
Essentially, the Code is all about ensuring mediation in any particular field is done in a professional manner, and that the agreements are amicable, and that the parties involved are given maximum confidentiality during mediation proceedings.
Benefits of Choosing Mediation in Divorce Proceedings
There are plenty of benefits to choosing mediation over litigation and other alternative methods of dispute resolution.
- Mediation minimizes negative emotional impact
Most divorces are negative in nature. Separating from someone you’ve shared so much with, regardless of the reasons, always elicits some form of negative emotional impact. The court process is by nature adversarial. It pits one party against the other. This can divide you even more and possibly increase the hostility between you and your partner. Mediation, on the other hand, looks to the future. Its objective is to find an amicable solution in a friendly, informal environment. This is less likely to cause emotional distress or increase hostilities between you and your partner
- With mediation, you get to decide
Taking a divorce dispute to court hands over the decision-making to the presiding judge. He or she will make a legally binding solution that you will have to stick to. However, in mediation, you and your partner have the final say on what happens. You get to go over the issues with the mediator and jointly suggest solutions. And if you get a mediator who is experienced enough, the agreements you reach will probably be better outcomes than anything a family court judge could have suggested.
- Comfortable environment
Mediation is often conducted at a mediator’s office. Most divorce mediations involve just three parties/ persons present in the office. This is in contrast to court litigations that normally have more people and formalities making them uncomfortable for most people. While court litigations involve following strict procedures and sticking to the legal side of things, mediation is quite informal and allows the discussion of non-legal issues such as child discipline, performance, and house chores.
Higher probability of satisfaction with the outcome
Multiple surveys have been done and most report significantly higher rates of satisfaction for parties that opt for mediation compared to parties that pursue court settlements. This is because mediation allows for more active involvement (no lawyer speaking on your behalf) and greater compliance because the decisions are reached through discussion as opposed to someone else making them for you. Your partner will also be more likely to comply for the same reason and cause one or two or all of their interests must have been addressed in the final agreement. Therefore, if you want compliance and to be satisfied with the final outcome of your divorce dispute, mediation is recommended over litigation.
The issues discussed or crucial information revealed during mediation is private and confidential. Participants can talk freely, privately (with the mediator of course), and without any fear of losing face or of disclosing issues that they may not have felt comfortable disclosing in a court of law. What’s more, the law prohibits mediators from disclosing information gathered during mediation in later court proceedings (should there be any). But there is a caveat. There are several situations in which the mediator can reveal such information and he or she will tell you of those specific instances before the commencement of mediation.
- Mediation is faster than litigation
This is perhaps the main benefit/ reason why many people are taking mediation over litigation. Mediation is way faster. It basically takes a few days or weeks. This is in contrast to litigation that usually takes months (to resolve even simple cases) or years. If you are like most people, you probably want to quickly move past this difficult chapter of your life. You want to quickly begin a new one. And the quickest way to find a solution and finalize a divorce is through mediation.
A typical lawsuit would probably cost you tens or hundreds of thousands of dollars to finalize. The court fees might be cheap, but the more that there is to agree on or divide the more time such cases take, and the more you will have to spend on attorneys. This makes litigation expensive.
And remember, California is a “Community Property” State. Whatever you earn after marriage is community property. Which means that the longer the court processes take, the lesser your final financial settlement will be. This is because you will be indirectly paying for not only yours but also your partner’s legal fees.
In contrast, mediation is much cheaper. You only need to pay for mediation fees and the mediation normally takes a few days or weeks to complete.
- Greater flexibility and convenience
Unlike a lawsuit that may involve having to strictly abide by a set of procedures with penalties for not doing so, mediation is voluntary, flexible and convenient. Also, a mediator is more likely to find a more suiting schedule for you than a judge.
The Divorce Mediation Process
All mediation processes are designed to be as informal as possible while still taking into account the gravity of the situation at hand and the difficult decisions to be made. The process outlined here is to give you pointers on what to expect rather than to detail the exactly what normally happens. Each mediator is different and his or her methods might differ from the process outlined here.
Step 1: First meeting
The first meeting is basically the mediator and the couple meeting to lay the ground rules and establish the issues in contention and information to be gathered (e.g. financial appraisals). The meeting often lasts no more than 2 hours.
Step 2: Subsequent meetings
In the subsequent meetings, the discussions are basically of the give and take type. An experienced mediator will take into account all issues and guide the parties accordingly. Compromises will definitely be made but in the end, all the decisions will be mutually agreeable. The mediator will also give legal advice where necessary and disclose how common divorce issues are resolved. Normally, you are sited in the same room as your partner but in other cases, the mediator may sit you and your in separate rooms.
Step 3: Agreement
When all issues have been resolved, the mediator will draft an agreement to be reviewed by both parties. One can hire an attorney for this purpose but the mediator can also take you through the agreement.
Step 4: Filing of documents
As is the case in typical divorce court cases, relevant documents have to be filed. The mediator will supply you and your partner with the relevant court documents for signing before filing them with the court. The documents include disclosure documents and the marital settlement agreement.
After A Mediation Agreement
All the documents filed with the court including the mediation agreement form part of your divorce paperwork. And once successfully filed, they become part of your divorce judgment. This means that they can be enforced by the court if you or your ex-partner don’t do what you said you would do in the agreement.
But it often doesn’t get to this with mediated agreements. Parties are often much more likely to comply with mediated agreements than with any other agreements because they are truly comfortable with the terms. Obviously in contrast to court settlements that most just following not out of conviction but because they fear the penalties that may be attached to lack of compliance.
Why You Need to Go for A Professional Mediator
The best mediator is often a legal professional. A family attorney to be exact. Family attorneys are specifically trained to handle divorce cases. However, not all family attorneys are born the same. You need to seek one who is proficient, prudent, experienced and can guarantee you the best outcomes. Otherwise, you may end up spending more time in your mediator’s office than you planned for.
An experienced mediator is your best bet. He or she will most likely have handled divorce cases and dealt with issues like the ones you might have. He or she will also know how and when to call for compromises so that both parties get to move forward in agreement with what is being done.
Getting A Professional Mediator
Wherever you are in the country, your local state bar association is perhaps the best place to start looking for divorce mediators. You will probably be given a few referrals to contact. But if you are in San Diego, contact us. We are a team of highly experienced family attorneys specializing in; Family Law Mediation, Premarital Agreements, Division of Property, and Child Custody among other areas. We’ve got the people, the resources and the experience needed to help couples find reasonable agreements to their divorce disputes.
Contact Us to Discuss All of Your Family Law and Mediation Options
A divorce is a difficult life experience. Nobody would like to go through such an experience. However, separation happens. And it doesn’t have to take months for you to finalize your divorce. Mediation is a legally acceptable alternative method of dispute resolution. California Mediation Code protects you during mediation and there are so many benefits when you opt for divorce mediation instead of the family court. You get privacy and confidentiality and your dispute will be resolved much faster giving you the time you need to adjust and move on to the next chapter of your life. San Diego Divorce Attorney can assist you through this trying process with the utmost knowledgeable representation.