California Divorce Mediation

Divorce Mediation
Frequently Asked Questions

provided by Diana Mercer
Attorney-Mediator and Tara Fass, Therapist-Mediator,
copyright 2003, Peace Talks Mediation Services, www.peace-talks.com.

How Does Family Law and Divorce Mediation Work?

Pros and Cons of Courts vs. Mediation

Why is Mediation Cheaper?

Why is Mediation More Effective?

What if We Can’t Even Talk?

What Happens if We Don’t Agree?

Who is a Good Candidate for Mediation?

What Happens at the First Meeting?

If We Can’t Settle, Can I tell the Judge My Story and Let the Judge Decide?

How does Family Law and Divorce Mediation Work?

Mediation is an approach to a dispute which lets you keep full control of the outcome. It also focuses on “win/win” solutions, rather than one person being the winner and the other person being the loser. This is especially important in family and divorce cases, because you’ll have an ongoing relationship with other parent of your children. Even for people without children, you still have mutual friends, family members from the other side with whom you’re close, or work colleagues.

When people work together to reach an agreement, both parties are typically more satisfied than if a Judge or lawyer makes a decision for them. After all, who knows your circumstances and what will work for your family better than you do? In mediation, the only people making decisions are those involved in the dispute—and those who will be living with the outcome.

Over 98% of all divorces settle before a trial. That’s a staggering statistic, especially when you realize that about 40,000 divorces are filed in Los Angeles County each year. That means that 39,200 of these cases settle out of court. So why settle at the last minute in the courthouse hallway after spending thousands of dollars in litigation? Why not do it on your schedule, with time to consult with your accountant or individual attorney before you sign any documents?

Think for a minute about the people you know who are divorced. Are there any people can you think of who’ve gotten divorced, and now you can’t invite both ex-husband and ex-wife to a dinner party? Or parents who have divorced and can’t sit in the same room for their child’s graduation or wedding? Or people who have lost their job, spirit, and sense of humor because of an ongoing court battle? And, worst of all, people who have abandoned their children or declared bankruptcy because of the emotional toll and financial devastation of a contested divorce?

While mediation isn’t a miracle cure, it does help people work together to resolve their differences and to settle their case out of court with less cost, stress, and delay. Mediation typically consists of several joint meetings between spouses (or parents, if you are not married) which last 3-4 hours each. During those meetings, you and your spouse discuss the issues which need to be resolved in your case. The mediator is there to facilitate the discussion, assist with communication, provide information and suggestions, and use their specialized training to assist the two of you to resolve your differences and write up an agreement which is fair to both of you, and, if you have children, in their best interests as well.

How many sessions you’ll need depends on the complexity of your case, but about 80% of most mediated divorces settle in one or two sessions, with only a few taking up to five sessions or more.

Pros and Cons of Court vs. Mediation

Courts · Lengthy & time consuming.

Much of the money you spend on legal fees will be for time waiting in court; 

• Scheduling conflicts between courts and litigants cause expensive delays; 

• Judges have little time to hear the details of your case, often less than 5 minutes, because they are often assigned more than 30 cases per day (each);

• You may only get a minute or two to testify about your case, if you get to testify at all;

• You can’t predict the outcome of your case because it depends on a virtual stranger making the decisions for you;

• You may have to make decisions about settlement in a split second in a crowded hallway;

• No confidentiality—all court files are public records. Soon, they will be available online;

• Costly--each hour your lawyer spends waiting, you pay, even if no progress on your case is made;

• Stressful;

• Courts by their adversarial nature encourage combat, which is not conducive to a health family life after the legal proceedings are over.

Mediation · Faster because you determine the schedule and issues

• Cost-effective because you control the cost, which is usually about 1/10 to 1/3 the cost of a typical divorce case;

• Less Stressful because you make the decisions that you'll be living with;

• You control the outcome, and because of this, agreements made in mediation typically work better and are more thoughtful and detailed than those negotiated in the courthouse hallway minutes before a divorce trial;

• You have the flexibility of taking time to consider how a decision will affect your family in the long term. You can try out agreements before you sign the Judgment or Agreement;

• Confidential—so confidential, in fact, California law prohibits mediators from testifying in court;

• Healthier for your and your family, since part of mediation is learning to communicate better, which is especially important when children are involved.

• You can always go to court if it doesn't work;

Why is it cheaper?

Mediation is cheaper because it's faster and more direct. Most people come to mediation willing to work on the issues and to learn how to communicate better. That willingness translates into a less expensive divorce because resolving a case is almost always cheaper than taking it to trial. Rather than speaking through lawyers, you speak with each other (with the mediator's help, of course) about your goals and issues. Even if lawyers are involved with your mediation, they aren't spending hours and hours in court waiting for the judge to be free to hear your trial or billing for endless back-and-forth phone calls about the smallest details of your case. Consequently, their fees are typically much lower than in a case which is brought to court to litigate.

Why is it more effective?

Mediation is more effective because: 1) you get a chance to fully discuss an issue before you agree on it; 2) you can try out agreements before the judge makes the divorce final ; 3) you learn to communicate better which makes new and old issues less likely to turn into arguments, or worse still, days in court; 4) you can take time in between each appointment to think about whether or not a proposed solution makes sense; 5) if you need to change a solution before finalizing your divorce in court you can do it quickly and easily.

What if we can't even talk?

If you are willing to try to learn to talk to each other, then it's worthwhile to try mediation. Mediators are professionally trained to help people to build agreements and to learn to communicate with each other. If you're willing to try, usually a mediator can get you and your spouse to talk and begin to work on agreements. Even if you cannot settle the entire case, you may be able to settle part of your case, such as a parenting plan or property settlement, which will make your legal bills lower even if you must end up going to court for some of the issues.

What happens if we don't agree?

Even if you cannot agree on everything, you will probably be able to agree on some things. Each issue that you resolve in mediation translates into less time in court, less legal fees and less aggravation for you. And, for those issues you could not agree upon, at least you understand what those issues are, and where you stand. At the very least, you will feel like you tried your best to reach an agreement before resorting to court intervention. Sometimes new information, proposed solutions, or the passage of time makes it possible to resolve a previous disagreement, so even if you don't resolve your issue immediately, you may be able to resolve it a week or two later, without having to go to court. Because mediation is flexible, you're free to schedule an additional appointment at any time. You're also free to stop the mediation at any time if you don't feel you're making progress toward resolution.

Who is a good candidate for mediation?

All couples who are divorcing or splitting up (if not married) are good candidates for mediation provided: 1) there has been no domestic violence for which the perpetrator refuses treatment. If there has been domestic violence, and the victim and perpetrator have received treatment, you can still mediate but with specific safety provisions in place. If this is your situation, be sure to let the mediators know so that special arrangements can be made; 2) both spouses are willing to try to resolve their issues in good faith, and want to reach an agreement even if they don’t know how that can happen; 3) both spouses agree to be honest about their financial situation and intentions regarding children. California law requires that spouses make a full financial disclosure to each other during a divorce, and the mediator will help negotiate how that disclosure will be made, if this is an issue between you. 4) if there has traditionally been unequal bargaining power between the spouses, both spouses may wish to have an attorney with them at the mediation session. It's a mediator's job to make sure the discussion is balanced. You may also want to put safeguards in place, like bringing your lawyer with you to the mediation session.

What happens at the first meeting?

Many mediators offer an initial consultation so that you can meet the mediator, ask questions about mediation, and decide if you'd like to try using mediation to settle your divorce or Family Law matter. The mediator or Dispute Resolution Associate will explain the process, and you can ask any questions that you wish. The actual Mediation process involves sitting down at a table in a neutral location where both parties will have the opportunity to present their stories in a balanced and non-confrontational way.

There are only two steadfast rules, and you can add additional ground-rules if you like:

1. One person speaks at a time.

2. No name-calling.

Everything flows from there in an orderly and organized fashion. Each person gets a chance to tell their side, and typically you’ll decide together with the mediator who goes first and how long they speak. You can respond to what the other person says, but you will wait until it's your turn to speak. Next, the mediator typically will make a list of the issues and decide which to discuss first. You’ll work through each issue until there are no more issues left, writing up your agreements as you go. Sometimes, people find they need more information before they can make an agreement or before the session can continue. When that happens, the mediator can either go on to another issue, or stop the session and make another appointment, so that you'll have time to gather the information you need, or speak to your accountant, lawyer, or other advisor(s).

Mediation works best when people don't feel rushed to make an agreement and when they have all of the information they need to make a good agreement.

If we can't settle, can I tell the judge my story and let the judge decide?

You can always stop mediating and begin litigating. Most mediators believe that's almost never the right solution, because of the stress and toll it takes on your and your family (not to mention the expense), but it's always an option.

Diana Mercer

Diana Mercer, Esq. is an Attorney-Mediator and the founder of Peace Talks Mediation Services in Los Angeles (www.peace-talks.com). A veteran litigator, she now devotes her practice solely to mediation. Outgoing and down-to-earth, she makes clients and attorneys feel at ease in solving litigation disputes in civil cases, from divorces to employment law and real estate.

She is the author of Your Divorce Advisor: A Lawyer and a Psychologist Guide You Through the Legal and Emotional Landscape of Divorce (Fireside 2001). She’s an Advanced Practitioner Member and Approved Trainer for the Association for Conflict Resolution (ACR).

Tara Fass

Tara Fass is a Licensed Marriage and Family Therapist   Tara has been a child custody mediator since 1994, and before joining Peace Talks Mediation Services in Los Angeles, CA, she was a Los Angeles Superior Court Child Custody Mediator and Evaluator in the Conciliation Court Office. She has also taught a Co-Parent Education Program with the Los Angeles Superior Court and maintains a private psychotherapy practice.

In addition to her professional mediation and training experience, Tara also has taught classes for parents going through divorce on how to negotiate the best possible divorce from a child's point of view. Tara has lectured on the subjects of co-parenting and blended families on the graduate school level and has presented on the topic of "Transformational Mediation" and “Preparing Clients for Custody Mediations” for therapist and attorney professional organizations. Family law mediation is Tara’s second career; she previously taught elementary school.