When you seek to get divorced in California, the law requires you to resolve several issues before the court will legally dissolve your marriage. These include the division of property, spousal support, child custody, and child support. Not surprisingly, many divorcing couples are not readily willing to cooperate and compromise. There can be many emotions and contentions that get in the way, and the case may seem to be headed to court so a judge can rule on the necessary issues. Litigation, however, is costly in money, time, and energy, so it is always preferable to try to reach an agreement before fighting it out in court. One way spouses may come to an out-of-court agreement is through mediation.
What is Mediation?
Mediation is a common – and often successful – method of alternative dispute resolution used by divorcing spouses and other parties involved in legal disputes. Mediation can often result in a mutual agreement in a shorter time period at much less cost to the parties. In addition, mediation keeps control in the hands of the parties instead of turning over their fate to the court. Mediation is meant to encourage parties to work together and find a middle ground instead of one party “winning” and the other “losing.”
How it Works
Mediation is less formal than a court hearing, and it usually takes place in a conference room or a lawyer’s office. It should be a comfortable atmosphere that helps keep the parties at ease.
Who is there?
The necessary parties to mediation are the conflicting parties (e.g., divorcing spouses) and the mediator. The mediator is a professional trained to be a neutral third party to the proceedings. The mediator cannot provide legal advice or show any bias toward either party. Their role is to facilitate the conversation between the parties to reach an agreement.
In some cases, there may also be attorneys present during mediation sessions, and this will depend on the specific circumstances and mindsets of the parties. For example, if you know your spouse will try – and likely succeed – to manipulate you or you do not feel confident in your ability to properly speak your mind and stand up for yourself, you may want your attorney present. Further, if your spouse “lawyers up” for mediation, you may also want your lawyer there to feel like you have an even playing field. No matter what, you should always consult with your lawyer about any questions you have or before you sign an agreement.
Steps of Mediation
Mediators may have different “styles” of leading the proceedings, though there are general steps that mediation should follow:
- Introductory remarks
- Each party states the problem at hand
- The mediator gathers necessary information
- The mediator identifies the problems from their point of view
- The mediator leads the conversation to try bargaining and generate options for resolutions
- The parties either reach an agreement or they do not
Mediation may happen all in one session or parties may need several sessions to reach an agreement. If one session begins to get heated, the mediator may choose to stop and meet again at another time to allow the parties to cool off. The process ends when the parties reach an agreement or the mediator determines that an agreement through mediation is likely not possible.
The Mediation Agreement
If you and your spouse are able to agree on the relevant issues in mediation, you should then discuss the agreement terms with your lawyer (if your lawyer was not already present). If your lawyer believes the agreement is in line with your rights under California law, they can draft a contract with the terms of your agreement. They can also submit the agreement to the court overseeing your divorce. If the court approves of the agreement, it will become part of your final divorce judgment and will be enforceable as a court order.
Is Mediation Right for You?
While mediation is not right for everyone, it can work for many divorcing couples. You may think that mediation is not an option because you and your spouse cannot agree. However, if you could agree from the start, there would be no need for mediation. Mediation is meant to help parties in dispute reach a resolution that works for everyone involved. Often, spouses who think they will never cooperate can find a way to do so with the help of the right mediator. It is always worth it to discuss the option of mediation with your divorce attorney who can provide more information and advice.
