1. WHAT IS DIVORCE MEDIATION?
Mediation is the process in which a divorcing couple negotiates the terms of their divorce, guided by a neutral professional mediator. Instead of going to court to have a judge decide the important questions that come up in divorce cases, in mediation the spouses themselves decide what the terms of their divorce will be. Utilizing proven dispute resolution techniques, the professional mediator acts much like a shepherd in assisting the spouses to discuss and resolve all of the issues that are common in divorce cases: child custody, child support, spousal support (alimony) and division of community property. Unlike litigation, where lawyers battle out the case in court, mediation enables the spouses sit down with a professional mediator to discuss the terms of their divorce in a calm, respectful and peaceful manner.
2. WHAT DOES A MEDIATOR DO?
A mediator has various responsibilities, which include the following:
● Determine if mediation is appropriate for the couple.
Mediation is not for everyone. Some divorcing spouses do not have the emotional make up that is necessary for the mediation process to succeed. The mediator must first determine if both spouses have attitudes and beliefs that are consistent with the spirit of mediation.
● Educate the couple about how mediation works.
Most people have a good idea about what happens in a courtroom. The mediation, on the other hand, is unknown to most people. The mediator must help the spouses understand exactly how mediation works and what to expect from it.
● Inform the couple about the cost of mediation and how long it will take.
While there is no way for the mediator to predict what the final cost of the mediation will be, most skilled mediators provide the couple with an estimate of the eventual cost, based upon the hourly rate charged by the mediator.
● Obtain relevant and necessary information.
In order to assist the couple in making decisions, information about the couple’s children, incomes, expenses, assets and debts must be obtained by the mediator. This is usually done with written questionnaires.
● Assist the couple in identifying the areas of disagreement.
Once the basic information is obtained and assembled, the mediator assists the spouse to identify the areas in which they disagree. Sometimes, when the spouses begin their mediation, they are not aware that they do not actually agree on an important issue. The mediator must make sure that each spouse expresses his or her opinion regarding all of the issues in the case.
● Maintain neutrality at all times.
In order for the mediation process to succeed, it is essential that both spouses see the mediator as being unbiased. It is the mediator’s job to assure both spouses that the mediator is truly a neutral person who will not take sides with either one.
● Identify options for each spouse to consider.
The mediator will assist the couple in generating options with respect to each issue. This gives the couple the ability to compare different scenarios and find those alternatives that address each of their interests.
● Reduce any agreement to writing.
Once the couple has worked out agreements, the mediator will prepare either a Memorandum of Understanding, a Marital Settlement Agreement or a Judgment of Dissolution of Marriage, which will incorporate the agreements between the spouses.
3. IS MEDIATION RIGHT FOR ME?
You and your spouse are good candidates for mediation if you both can answer “yes” to each of the following statements:
● You are motivated to resolve your marital differences peacefully and cooperatively, and without going to court.
● You would like your divorce case decided by you and your spouse, not a judge.
● You would like your personal affairs to be kept private and not disclosed in a crowded courtroom.
● You are willing to actively engage in good-faith discussions with your spouse.
● You are willing to disclose all relevant information regarding your children, income and expenses, and assets and debts.
● You are willing to state how you feel with respect to each area of dispute.
● You are willing to respectfully disagree with your spouse.
● You are willing to agree on the issues in your case, even if that means you will not get everything you want.
● You are not the victim of domestic violence by your spouse.
● You and your spouse do not have any serious substance abuse and/or emotional issues.
4. HOW MUCH WILL IT COST TO HAVE MY CASE MEDIATED?
The cost of mediation is determined by (1) the mediator’s hourly billing rate and (2) the number of hours the mediator spends on the case. Rarely will a case be mediated in less than ten hours of the mediator’s time. If, for example, the mediator is charging $350 per hour, the fee charged would be not less than $3,500.
Just as every family is different, so is every mediated divorce. Each case has its own peculiar set of circumstances and issues that have to be resolved. Cases with relatively few disputes can be resolved in a few mediation sessions. Cases with more complex questions can be expected to require more sessions for the spouses to reach an agreement. For this reason, it is not possible for a mediator to predict exactly how much the mediation process will cost. If other experts are retained by the couple to assist in the mediation process, their fees will also have to be considered.
What can be said with certainty is that a divorce that is mediated will cost the couple a fraction of what they would jointly pay to have their divorce processed through the courts. Divorcing couples can easily spend tens of thousands of dollars to have their lawyers take their cases to court. In fact, the typical divorce case that proceeds to trial usually costs the couple more than $50,000 by the time the trial is concluded, when the fees of their attorneys and retained experts are considered.
5. HOW DO WE PAY FOR OUR MEDIATION?
There is no one way that a mediator is compensated for his/her services. If the couple has sufficient liquid assets, the mediator’s fees are often paid from joint savings or checking accounts. On the other hand, where one spouse earns substantially more than the other, that spouse might be asked to pay in advance the mediator’s fees, subject to a reimbursement from the other spouse when the mediation is completed. Where the spouse’s incomes are comparable, each one will usually pay one-half of the mediator’s fees.
Unlike litigation attorneys, who usually require substantial fee advances, mediators usually charge modest fee advances. Fees in excess of the initial fee advance are paid as services are rendered.
6. HOW LONG WILL IT TAKE FOR MY CASE TO BE MEDIATED?
The same factors that make it difficult to accurately estimate the cost of mediation also make it impossible to give a finite estimate of how long the process will take. How long your mediation takes will primarily be determined by how well you and your spouse are able to negotiate the terms of your divorce, with the assistance of your mediator.
In most divorce cases, one of the spouses is more eager to get the case completed than the other. Unlike a litigated divorce, where calendars and deadlines are set by the court, in mediation, the spouses jointly control the pace of the process. Both spouses must be comfortable with how the mediation process is progressing. This means that the spouse who started the divorce must respect the other spouse’s need to adjust to the fact that the marriage will be ending. Conversely, the spouse who did not initiate the divorce needs to understand that the marriage will be ending soon and that the other spouse has the right to get on with his or her life after the divorce.
Over the years, we have found that most divorce mediations generally take between three and six months to be completed. However, there have been mediations that have been completed in less than three months. There have been others that have taken more than one year, from start to finish. Every divorce case has its own unique combination of facts, issues and personalities that will determine how long the mediation process takes. Thus, we have no way of estimating precisely how long your case will take to complete.
7. HOW MUCH TIME SHOULD I ALLOCATE FOR A MEDIATION SESSION?
The same factors that affect how long it takes a mediation to be completed also affect how long a mediation session takes. Ordinarily, we try to limit mediation sessions to not more than two hours. On occasion, when the circumstances warrant it, longer sessions might be in order. It is the job of the mediator to determine if spending additional time would aid in the resolution of any of the divorce issues.
8. WHAT IS THE DIFFERENCE BETWEEN MEDIATION AND LITIGATION?
A mediated divorce is usually much less expensive than a divorce in court. In a traditional litigated divorce case, the spouses hire lawyers to represent them in court. Before the case even gets to court, the attorneys will often spend many hours preparing and responding to “discovery,” which includes written questions, lists of documents to produce, subpoenas and depositions. If the case goes to trial, the attorneys will spend many more hours preparing for the hearing and in presenting their cases to the judge. In mediation, the spouses do not engage in the time-consuming and expensive discovery process. Instead, documents and information are exchanged on an informal basis. Moreover, in mediation the spouses do not have to pay attorneys to represent them in court.
Litigated divorces can take more than a year to complete. In fact, it is not uncommon for divorces in court to last as long as two years. A mediated divorce, on the other hand, will usually take between three and six months to complete.
When spouses take their divorces to court they are entrusting to a total stranger – the judge – the power to make decisions that will affect them and their children. Often, the decision of the judge does not necessarily reflect anything that either spouse believes is fair to them or their children.
Mediation, on the other hand, is founded on the principle that the mediating spouses are in the best position to know what is best for them and their children. In a mediation, it is the spouses who jointly control the outcome of their case. With the assistance of their mediator, the couple determines how all of their marital issues – child custody, support and the division of their community property – are to be resolved.
○ Relationship After the Divorce
By the end of a litigated divorce case, the spouses are often so polarized that it is difficult for them to maintain civil communications after the divorce is completed. Because mediation is a cooperative process, after the mediated divorce is over the spouses usually are much better able to work with each other in deciding post-divorce issues, such as decisions concerning their children.
9. IF MY SPOUSE AND I ARE ABLE TO WORK OUT A MEDIATION AGREEMENT, WILL IT BE “LEGAL”?
If your mediation is successful and you and your spouse are able to work out agreements on your divorce issues, a Judgment of Dissolution of Marriage will be prepared. This document will contain all of the terms of your divorce, including child custody, child support, spousal support, and division of assets and debts. After you and your spouse sign the Judgment of Dissolution of Marriage, it will be sent to the court for the judge’s signature. This is the same procedure that occurs if the divorce is litigated by attorneys. At the conclusion of both processes, the spouses have legally enforceable Judgments of Dissolution of Marriage.
10. IF THE MEDIATION IS NOT SUCCESSFUL, CAN EITHER SPOUSE TELL THE JUDGE WHAT WAS SAID IN THE MEDIATION?
It is the policy of the law that settlement discussions, which can help spouses avoid expensive trials, should be encouraged. For that reason, the California Evidence Code provides that any communication between the spouses and the mediator is “privileged.” This means that, if the mediation is unsuccessful and the spouses end up going to court, anything that was said or written by the spouses or the mediator cannot be disclosed to the judge.
11. CAN WE USE MEDIATION TO MODIFY OR ENFORCE AN EXISTING COURT ORDER?
The availability of mediation services does not end when the case is over. After a case is finalized it is not uncommon for one of the parties to request a modification of the child support, spousal support or child custody order. In other cases, one party might be seeking to enforce the terms of a settlement. For example, a parent who has been ordered to pay child support might have failed to comply with the order and, as a result, would have built up a substantial amount of support arrearages. If both parties agree, they can retain the services of a mediator to assist them in resolving these issues, as well.
12. IS MEDIATION LIMITED TO DISSOLUTIONS OF MARRIAGE?
Parties to all family law cases can resort to mediation to resolve their differences. Thus, mediation can be used in the following types of matters:
● Dissolution of Marriage
● Legal Separation
● Enforcement of Orders
● Premarital Agreements
13. IF I AM HAVING MY CASE MEDIATED, DO I NEED TO SPEAK WITH A LAWYER?
It is important that each spouse knows and understands the law and the legal consequences of any proposed mediation agreement. For this reason, our office strongly recommends that each mediating spouse retain an attorney on a consultation basis. An attorney who is retained as a consultant does not file any papers and does not actually participate in the mediation itself. Instead, the consulting attorney’s job is to be available to the mediating spouse to answer any questions that come up along the way and to review documents that are generated in the mediation. If the mediator does not prepare the ultimate agreement, one of the consulting attorneys will usually take on that job.
14. MY SPOUSE IS VERY PERSUASIVE. WILL MY SPOUSE BE ABLE TO CONTROL THE MEDIATION AND GET HIS/HER WAY?
It is not uncommon for wives, who have not worked outside of the home, to express concern that their businessmen husbands will control the resolution of the financial/property issues in the case. Some fathers, on the other hand, express concern that their wives will have more influence with the mediation on matters concerning the children. One of the features of mediation is that the process is controlled by a neutral mediator, whose job is to make sure that both spouses perceive the process as being fair. A skillful mediator will have had training and experience in balancing the power between the parties, so that neither party feels that he/she is at a disadvantage.
15. WILL OUR CHILDREN BE INVOLVED IN THE MEDIATION SESSIONS?
One of the advantages of mediation over litigation is the fact that the children’s views and feelings can be considered when the parenting plan is being created. Children often attend mediation sessions to express their questions and concerns about where they will be living and how much time they will be spending with each parent. This is particularly useful where the children are older.