frequently asked questions about divorce mediation

8/7/2019 Frequently Asked Questions About Divorce Mediation

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Frequently Asked Questions About DivorceMediation


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ByLaw and Mediation Offices of David L. Price


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Why Should I Consider Mediation For My Divorce?


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Mediation allows separating and divorcing couples to take control of planning their own lives, andallows them an environment in which to make good decisions about their future. It is especiallybeneficial for parents, who though separating, will need to continue making joint decisions abouttheir children well into the future. The decision-making process learned in mediation can serve as amodel for future communications. Also, mediated settlements have a consistently highercompliance rate because the husband and wife have created their own agreement.


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What Does The Mediator Do?


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A family law mediator is a neutral party specially trained to help couples resolve the issues in theirdivorce. The mediator facilitates the communication between the parties by making sure each partyis given an uninterrupted time to speak, asking a party to restate or explain a point when necessary,and asking questions to make communication clear. The mediator also provides information aboutthe legal system, how issues may be viewed by lawyers or judges, and what alternatives there are forsolving issues. When necessary, the mediator will refer the couple to third party experts for services

such as appraisals.


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How Does the Process Work?


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The couple and the mediator meet in a series of mediation sessions, usually 1 - 2 hours long.


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1st meeting: The couple and the mediator identify the issues needed to be discussed and the order inwhich they will be discussed, then decide what information needs to be gathered and shared.Between the first and later sessions the couple gathers all relevant financial data, or if necessary, theopinions of experts such as appraisers or accountants, with this material treated with the same careand concern as would be the case in the adversarial process.


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Further Meetings: Discussions revolve around how to compromise on the various issues in order tomeet the needs of both parties. The mediator assists by providing information about the courtsystem and common ways divorce issues are resolved.


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The Agreement: When an agreement has been reached on all issues, the mediator drafts theagreement for review by each of the parties and their attorneys, if any.


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How do the Court Papers to Start & Finish the Divorce Get Filed?


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If the mediator is an attorney, the attorney can assist the parties in filing all papers with the court,including starting the dissolution of marriage action, preparing and filing the necessary disclosuredocuments, and preparing the agreement, judgment, and final papers to be filed with the court.


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Will WeHave to Appear in Court?


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No court appearances are necessary by either party.


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How Long Does Mediation Take?


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The complexity of the issues and ability of the individuals to be flexible as they negotiate a fairagreement determines the length of the mediation. Every case is different, but the average caseusually takes at least three to four two-hour mediation sessions, spread out over at least a month ortwo. More complex cases can take four to six months to complete.


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What Will it Cost?


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In a typical case, parties can expect to pay a combined total of between $3,000 and $4,000 for casesneeding three to five mediation sessions. This includes $900 - $1,200 for their mediation sessions,$900 for preparation of the Marital Settlement Agreement, and an additional $1,200 forpreparation of the Petition, disclosure documents, and the judgment. Court filing fees are usuallyabout $195. The mediation sessions are paid for on a pay-as-you-go basis, the court documents andMarital Settlement Agreement are paid for in advance.


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The cost of each party's attorney for consulting and to review the agreement and judgment is inaddition to the cost mentioned here.


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Is Mediation Cheaper Than Using Lawyers toHandle a Divorce?


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Many lawyers charge a retainer fee of between $2,500 and $5,000 for most average cases, and billthe client for services in addition to the time covered by the retainer. The retainer amount will besubstantially more in complex cases, so the cost of mediation from beginning to end can be less thanthe combined retainer fees would be if the parties hired lawyers to handle the divorce.


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Typical divorce costs can run two to ten times higher than the mediation cost. Also, keep in mindthat "cost" not only means dollars spent but the emotional cost to the parties and their children whogo through litigated divorces. This emotional cost is greatly reduced by the mediation process.


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Will our Agreement be Enforceable?


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Once an agreement has been signed, that agreement is enforceable, however usually a judgmentbased on the agreement is prepared and filed with the court, and is just as enforceable as any otherdivorce judgment.


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Should I See a Lawyer During Mediation?


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Mediation is not a substitute for the services of a qualified attorney. Both parties are encouraged toobtain independent legal advice during the mediation process, and to have their lawyer review theagreement before it is signed. Even when the mediator is a lawyer, he/she cannot give either partylegal advice.


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What if My Case is Too Complicated for Mediation?


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No case is too complicated to be settled using mediation. Frequently the parties in mediationconsult with outside experts such as accountants, appraisers, financial planners and attorneysduring the process.


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What Does it Mean When You Say Mediation is Confidential?


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State law says that no one, not even the two parties, can use what is said in mediation as evidence incourt. What happens in mediation is as confidential as settlement negotiations between parties andtheir lawyers.


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What ifWe Can't Agree on All Issues?


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It is fairly rare to agree on all but one or two issues, but even if that is the case mediation is seldomwasted. An agreement can be prepared on all settled issues, and the parties can either litigate theremaining issues or take further time to think about them and come back to mediation.


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We Don't Get Along Well -How Can We Possibly Mediate?


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Although many mediating couples are amicable and work well in mediation, there are also manycouples who are very emotional about the divorce and don't think they can negotiate face to face.Part of every qualified mediator's training is in assisting couples who have high emotions but whostill would like to work things out peacefully. People do calm down and become effective mediationparticipants when they see that the process can work without adding to the high emotional andfinancial cost of divorce.


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My Spouse is Very Powerful -How Can I Hope to Be Successful in Mediation?


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The mediator will not allow one party to overpower the other in mediation. If one of the parties isunable to be effective during this process, the mediator will stop the mediation. However, manypersons who considered themselves to be the "weaker" of the two spouses have been quite effectivein mediation. As an unsophisticated spouse of a very powerful business executive once said, "I havethe power to say no, and my spouse better listen or we'll wind up in court."

You've decided to seek a divorce. Your nerves are frayed. The in-laws are asked pointed questions. The

children are beginning to act up in all-too-transparent ways. To top it off your pleasantness is in the midst

of an earthshaking landslide.

What can you do? Clearly, you can hire legal advice. But who? Here's a checklist of reasons why working

with a trained divorce mediator can often help.

Ten Reasons To Consider A Divorce Mediator

1. It costs less.

When both spouses meet with one Divorce Mediator they can share the cost, which is commonly $1000 to

$5000 total. If the spouses were to retain separate attorneys to represent them in the divorce, each would

be paying a retainer of about $1500 just to get started.2. You have control.

In Divorce Mediation the couple controls how quickly or slowly decisions are made, when the divorce

Petition is filed, and what the terms of the divorce will be in the Marital Settlement Agreement. Each step is

by agreement, in contrast to the adversarial process in which attorneys set court dates and judges make

decisions with very limited time and information.3. Paperwork done for you.

Many people try to do their own divorces these days, but run into difficulty trying to understand the laws

and the complex paperwork involved. A mediator who is an attorney can prepare and file all of the

paperwork for parties representing themselves.4. Easier on the children.

The worst aspect of a divorce for children is the conflict between the parents. It will be traumatic enoughfor them, but they can heal knowing that their parents are working together to make adult decisions and

will not put them in the middle.5. Easier on you.

The way your marriage ends will significantly impact the way you approach your future relationships. When

you use a mediator to help both of you communicate and make important decisions, it can be easier to

move forward and accept the past, rather than turning hurt and anger into an expensive court battle.6. You can still go to court.

When people use divorce mediation, they do not give up their right to go to court. If you are not satisfied in

mediation, you can stop at any time, retain a separate attorney and have the judge decide the issues. What

has occurred in mediation will remain confidential, so the parties can start fresh.7. You get legal information.

In divorce mediation with an attorney you will be provided with enough legal information to make your

own decisions about what is fair. While an attorney acting in the role of mediator cannot advise either

party, the attorney can share his or her general knowledge of how the court might address the issues in

your case. Each spouse is also encouraged to consult with a separate attorney for legal advice, especially

before signing the Marital Settlement Agreement.8. Emotions can be managed.

Many people simply want to be heard and understood in the divorce process. However, on their own this

can get out of control, as each person triggers anger and resentment in the other -- often unintentionally. A


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mediator trained in counseling can assist the parties in acknowledging feelings but not allowing feelings to

control the decision-making process.

9. It's confidential.

In private divorce mediation, all discussions and tentative agreements are confidential. This makes it safe to

propose solutions for possible consideration without having them all thought out. This can lead to new

solutions neither party had previously considered.

10. It builds on the positive.

In mediation, both parties are encouraged to recognize the positive in the other person and to find

common ground for agreement. In court, each side must emphasize the negative about the other person in

order to "win" against the other. Especially when there will be future contact between the parties, such as

in parenting, whatever goodwill remains between the parties should be preserved and not destroyed.Picking a Divorce Mediator

Divorce Mediators are not yet licensed in California. However, it is recommended that a Divorce Mediator

be knowledgeable about family law, family counseling, child development and the mediation process. A few

mediators possess all of these skills, and a team of a mental health professional and an attorney can also be

quite effective.

In picking a divorce mediator, ask how many mediations that person has done in the past 2-3 years. Many

people are just adding mediation to another practice and may have done only one or two mediations so far.Most cities have Practitioner Members of the Academy of Family Mediators, who must have extensive

training and mediation experience in at least ten cases.

While mediation isn't the only alternative to an ugly divorce experience, it is one to seriously consider.

Make a list of pros and cons for your specific situation, and weigh the facts for yourself. The 10-15 minutes

you spend considering a divorce mediator could well be worth the effort!

frequently asked questions about divorce mediation

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