Your Complete Guide to Divorce Mediation in California

What is an Alternative Dispute Resolution?

When it becomes necessary for a marriage to reach its conclusion, divorce is often the answer. Divorce should never be entered into without considering all other options, however, including legal separation and other means. But if it’s necessary to pursue a divorce, it is important that you understand all your legal options for the divorce proceedings. While contested divorces may result in divorce litigation, there are other alternatives for settling difficult issues between you and your soon-to-be ex-spouse. Among those are the different alternative dispute resolutions (ADR).

An alternative dispute resolution is a legal means to resolve your difficult divorce without the added emotional toll, costly expense, and commitment of time required by divorce litigation. If you and your soon-to-be ex-partner are open to engaging in civil and honest negotiations, you may wish to consider an alternative dispute resolution. An ADR can save you time, money, and stress.

There are two different types of alternative dispute resolutions to consider, mediation and collaborative divorce.

In collaborative divorces, the two spouses and their divorce attorneys will meet privately to negotiate the terms of their divorce. The aim is to collaborate on the terms of the divorce in hopes of reaching a reasonable conclusion. While some prefer this method of alternative dispute resolution, many more prefer divorce mediation as their method of choice.

What is Divorce Mediation?

Divorce mediation is a way to resolve complex divorce legal conflicts, child custody matters, spousal support disagreements, and child support issues. In the mediation process, the only people entrusted with the authority to make long-lasting decisions in your divorce proceedings are you and your spouse. This makes mediation different from other means of reaching conclusions to your divorce proceedings like arbitration or litigation, wherein arbitrators and judges will determine the final outcome.

In divorce mediation, a neutral third party (a family law mediator) will help the divorcing spouses reach an agreement that is mutually beneficial to both parties. The mediator does not make any decisions for you; rather, they guide negotiations and help you find common ground with your spouse in complicated matters.

Divorce mediation is among the most widely preferred ways to resolve complex divorce cases. It should not be up to other parties to determine the outcome of your divorce case. Mediation grants you and your spouse the authority to determine how things are resolved. If you are interested in divorce mediation, we recommend contacting our law firm to schedule your initial consultation with our experienced legal team.

Who is the Mediator?

The role of the mediator is to listen to each of the concerned parties in the divorce dispute and assess what the other spouse has to say on the matter. The mediator can help determine what areas are of special concern to each spouse and which areas matter less to one spouse as compared to the other. By making these determinations, it is possible to work out compromises here and there so that each spouse feels that they are getting what they want out of the divorce.

The mediator is a third-party neutral guide through the mediation process. They are a family law professional, usually a qualified divorce lawyer themselves, and are highly adept at helping divorcing spouses through the complexities of the dissolution of marriage.

It is not the mediator’s job to decide things for you. They will not force you to make any decision you are not ready to make for yourself. Nor will they have the authority to make decisions based on their own judgment. It is solely their purpose to help facilitate negotiations between the divorcing spouses in hopes of reaching a satisfactory conclusion to any divorce dispute.

When is Mediation Required in a California Divorce?

Under California law, a family law judge may order divorcing spouses to mediate child custody matters if they have minor children but have thus far been unable to come to an agreement on their parenting plan. This also applies when one of the parents requests a court order for child custody or when a stepparent or grandparent has requested visitation rights with a child in a divorce case.

A family law court may decide that the parents who refuse to participate in court-ordered mediation could lose their right to challenge any of the court’s custody orders. However, divorcing parents must be provided an adequate amount of time so that they can prepare for mediation in a meaningful way.

Beyond child custody disputes, it is unlikely for a court to order mediation in any divorce case. In cases where mediation is not required, it is nonetheless highly recommended. To learn more about divorce mediation in child custody cases, please contact our California law office to speak with an attorney.

What is the Difference Between Court-Ordered Mediation and Private Mediation?

The specific process for court-ordered mediation will vary from one county to the next. However, there are certain differences between private mediation and court-connected mediation. One of the biggest differences is confidentiality.

In some California counties, court-ordered mediators have the legal right to submit reports and recommendations to the family law judge if the parents cannot reach an agreement during the mediation process. In these counties, the child custody mediation process is known as ‘child custody recommending counseling,’ even though it has more in common with mediation than counseling.

Other counties have confidential court-ordered mediation programs. In such counties, a family law mediator can only tell the court whether the parents have reached a full or partial agreement in the mediation process. Additionally, the divorcing parents must consent in writing before the court-ordered mediators are allowed to provide the courts with a description of any disputes.

In all California court-ordered mediation programs, a mediator must meet high qualifications in order to serve as a mediator for your case. Additionally, while children will not be involved in any mediation sessions, the court-ordered mediators may have the right to interview the children when it is deemed appropriate. However, mediators are not allowed to ask the children which parent they would prefer to live with.

It is preferable, when possible, to pursue private mediation instead of court-ordered mediation. Private mediation allows for more confidentiality, more time to prepare, and a broader range of issues to cover, and allows you to select the mediator for the whole process.

Even if child custody mediation is ordered by the courts, you may still opt to pursue private mediation negotiations for other matters.

What is the Divorce Mediation Process?

To begin the divorce process, the mediator will usually interview both spouses, often privately. The purpose of these interviews is to better comprehend the facts about the marriage, the reason for the divorce, the separation date, information about the children, the estate assets, the extent of any outstanding debts, each spouse’s income, and their respective needs and goals for the divorce mediation process. After this initial orientation, the process will begin in earnest.

The divorcing spouses will be asked to work together to complete an information packet, which lists all shared estate assets and debts, expenses, income, and any information related to the children, including child custody issues. If they need help, a mediator or divorce lawyer can lend assistance. Both spouses should be present whenever the mediator is involved in any substantive discussion.

The information provided in the initial information packet can help the mediator prepare each spouse’s financial disclosures at the start of mediation. If each spouse has their own divorce lawyer, the divorce mediator does not need to be involved in the paperwork preparation process.

At this point, the mediation process transitions to negotiations between the spouses, wherein the mediator can help the spouses reach amicable agreements on areas of dispute.

In complex marital estates, including larger estates and those with business ownership or numerous investments, the mediator may recommend the involvement of additional legal expertise. These experts may include real estate property appraisers, forensic accountants, antique appraisers, business experts, and others.

Provided that both spouses are willing to negotiate in good faith, the mediator can then help the spouses reach common ground on complicated matters. At the end of the process, the mediator helps the spouses draft a stipulated judgment. When the judgment is signed, it will be delivered to a family law court and become a judgment of divorce.

What is the Role of Your Divorce Lawyer During Mediation?

Even though the mediator themselves is often a highly skilled divorce lawyer in their own right, they are only allowed to operate as neutral third parties.

However, it is possible for you to retain your own divorce lawyer throughout the mediation process. If one spouse does so, the other spouse should as well. Your divorce lawyers can help remind you of your legal rights and responsibilities throughout the divorce mediation process.

What Areas in a Divorce Case Can Mediation Address?

Divorce mediation covers several areas of disputes in the divorce process.

These often include:

• Business interests.
• Child custody arrangements.
• Child support agreements.
• Family support.
• Financial institution accounts.
• Life insurance policies.
• Major debts and liabilities.
• Parenting plans.
• Real property division.
• Retirement plans.
• Spousal support or alimony.
• Stocks and bonds.
• The division of assets.
• And more.

Who is Most Well-Suited for Divorce Mediation?

So long as the divorcing spouses are committed to the idea of working together to settle their divorce, mediation could potentially work for almost anybody. Litigation, after all, encourages conflict and ill will between the divorcing parties. Because of this, high-conflict divorces may benefit most from considering mediation dispute resolutions.

However, that being said, if you are a divorcing couple that has only a few areas of conflict in your divorce agreement terms, you may consider mediation as a means to help settle those few remaining conflicts.

When is Mediation Not Recommended for Divorcing Spouses?

Divorce mediation is not recommended for everyone, though. There are certain situations where it may even be considered irresponsible to recommend.

If you have been in a marriage with domestic violence, for example, it would be unwise to consider divorce mediation. The same goes for marriages that involved substance abuse disorders or abuse. Marriages with dishonesty, outstanding major debts owed by one spouse, or unidentifiable debts may also make it difficult or unfair to engage in divorce mediation.

Is Mediation Cheaper Than Divorce Litigation?

While divorce mediation is not free of charge, it is often much cheaper than pursuing divorce litigation. The longer your divorce goes on, the more it is likely to cost. Mediation keeps complicated issues and discussions out of the courtroom, thus avoiding costly courtroom fees. And mediation can help you reach agreements together instead of working against each other, which can help speed along the process.

So, yes, mediation is definitely cheaper than litigation. It is also easier for divorcing couples emotionally as well. If possible, we highly recommend divorce mediation as a means for resolving conflicts in your divorce.

Contact Us for a Consultation

When you contact our law firm, we can help you prepare for your divorce mediation process and help you gather all of the documentation and information that are required. Our law firm has years of experience helping clients through difficult divorce cases and mediation matters. We understand that this is a difficult time for you, and we would be proud to lend you our compassionate legal support as you attempt to come to a satisfactory conclusion to your legal matters.

To learn more about the legal services we provide at our firm, please contact our Campbell, California law firm to schedule a case evaluation today. You may call us at 408-688-9153.