FAQs

What are the advantages of mediation?

In most cases, the parties are more knowledgeable than attorneys or judges about their property and their overall situation. Mediation allows the participants to work out a settlement that addresses their unique situation, needs, and desires. The objective family law rules provide a frame of reference and a structure upon which to build an agreement that can be accepted as fair by both people. Mediation does not work in every case because parties cannot always bridge the gap that divides them. On the other hand, when parties understand the legal guidelines as they apply to their situation, most are able to negotiate a settlement agreement that they can accept as fair and workable at the time that it is signed and in the future.

In situations where the people have worked out a tentative settlement on their own, mediation provides an opportunity for the parties to examine the terms within a legal framework to determine the consequences of their decisions. The parties may or may not decide to modify their agreement in light of the family law rules. The rules are there to guide and provide reference points. In any event, the agreement that is negotiated by the parties and filed with the court as part of the dissolution judgment will be grounded in a legal framework.

What does the mediator do?

In order to negotiate an agreement, people must feel confident that they have all of the information that they need to make informed decisions. The mediator initially acts as a resource to assist the participants to assemble enough information so that they understand their situation and the issues involved. Mediation is a voluntary process that only results in an agreement when both parties are confident that they understand what they are doing and believe that they can live with the consequences of their decisions. The goal of the mediation process is to produce an agreement that is acceptable at the time that it is signed—and in the future.

While a couple addressing the issues arising from the dissolution of their marriage are not bound to follow the family law rules, it is important that they have a basic understanding of how the rules apply to their situation. The rules provide a reference point by indicating how a court will resolve issues in the event that the parties cannot reach their own agreement. Often disagreements that result from misunderstandings about the law smooth out as people gain a better understanding of a rule and its purpose.

Assembling information may involve selecting experts such as appraisers, accountants, and others to help illuminate the issues and suggest possible solutions. In most cases, both parties have a reasonable understanding of their situation. When one party has greater expertise regarding an issue, the other may want to obtain the assistance of an independent attorney in order to equalize the bargaining positions. While it often seems in the traditional system that the goal is to obtain an advantage over the other party, the goal of mediation is to produce an informed agreement that truly resolves as many issues as possible. The pace of the mediation process encourages people to obtain enough information to make decisions and then reflect on whether the settlement is acceptable to both parties.

Assuming that the parties have enough information to proceed, the mediator's task is to create an environment where both people feel comfortable negotiating a settlement. The goal of the mediator is to keep the parties communicating and allow them the opportunity to create their own agreement. It is not the place of the mediator to discern what is best for the parties and convince them what to do. While the mediator can relate what others have done in similar situations and assist the parties in developing possible solutions to problems, the resulting settlement document must embody the agreement of the parties who will be affected by its terms.

How does mediation differ from the traditional advocacy system?

In the traditional family law system, one party files a Petition with the court and then serves his or her spouse with a copy of the document to begin the process. Once the served party files a Response, the case moves toward resolution. There may be hearings to obtain temporary orders to deal with pressing issues as the case moves toward trial, as well as discovery of materials to assist the attorneys in preparing for trial.

Since few cases are resolved in a formal trial, most family law cases are settled through some form of negotiation. In the traditional advocacy system, attorneys negotiate with one another after consulting with their clients. The attorneys are representatives and advocates on behalf of their clients—there is no place for direct negotiations between the parties. The result is a written settlement agreement that is incorporated into the court's Judgment of Dissolution.

Mediation does not replace the traditional system, but the roles of attorney and client are shifted for purposes of negotiating an agreement. In less complex matters, the parties may not be represented while they negotiate the terms of a settlement with the assistance of the mediator. If they are represented, clients will consult with their attorneys as required while working out a settlement in mediation. Since no agreement will be finalized until parties have had the opportunity to consult with their attorneys, no safeguards are relinquished by engaging in the mediation process. Mediation provides an opportunity for the parties to expedite and control the process of negotiating a Marital Settlement Agreement that both can accept as fair.

In the traditional system, the court provides its coercive power to move the case toward resolution even when one party resists resolution. Mediation is a voluntary process and proceeds through the agreement of the parties—there can be no resolution unless both parties consent to the terms of the Marital Settlement Agreement. Participants need not agree on how to resolve the issues in their case in order to proceed by mediation, but there must be a basic commitment to negotiate a settlement.

What is the cost of mediation?

During the process of negotiating a settlement, the mediator charges by the hour and payment is made at the end of each session. How long the negotiating process takes depends to a large degree on the complexity of the issues to be resolved in each case. One of the goals of the first meeting is to identify the issues to be addressed in the case and to develop a plan to address them. This process helps to set the parameters of the process and better defines the work that will be required to reach an agreement.

Mediation will normally lead to an agreement with a substantial savings in fees. Selecting mediation requires an initial agreement between the parties that is normally impossible for couples locked in conflict. Mediation does not require that parties be in agreement or even like each other. What is required is a commitment to stay with the negotiation process in order to produce an agreement that seems fair to both people. The process is self-defining in the sense that the pace of the negotiations is not an issue when the parties are making progress and it is difficult to ignore impasses because they produce discomfort in direct negotiations.

Mediation allows people some latitude in how they resolve the issues arising from their marriage and divorce. If the parties can agree to provide one another with whatever information and materials they need to feel comfortable negotiating an agreement, it is possible to avoid the expense of formal discovery. Attorneys can be employed as consultants rather than as advocates. The focus of the process can be directed toward producing a written Marital Settlement Agreement that is attached to the Judgment of Dissolution and filed with the Court in an uncontested divorce case.

Is mediation confidential?

Evidence Code Section 1152.5 provides for the confidentiality of any statements made during mediation proceedings. This means that in the event that the mediation process breaks down, neither party will be permitted to call the mediator as a witness in a later trial to testify as to what either party said during the mediation sessions. Section 1152.5 also prohibits the introduction into evidence of any document that has not been signed by both parties and intended to become a public record. The purpose of these prohibitions is to allow each party to speak freely, be flexible, and seek compromise without fear of prejudicing his or her legal position in the event that the case cannot be settled and must be litigated. The mediator will assert the Section 1152.5 confidentiality provision in any case where called as a witness unless both parties agree in writing to waive the privilege as provided in the statute.

What is the result of mediation?

Resolution of the divorce process in California is in the form of a Judgment of Dissolution of Marriage filed in a Superior Court case. No matter how the issues in a dissolution action are resolved—through a court trial, attorney negotiations, mediation, or any other process—the terms are contained in a Judgment of Dissolution of Marriage. Once the Marital Settlement Agreement is signed by the parties, it is attached to and incorporated into the Judgment and filed with the Court in an uncontested proceeding.