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                The Law Offices of  V I V I A N   C.  C A R L S O N

San Jose Divorce

Mediation Attorney

Vivian Carlson

DIVORCE MEDIATION SANTA CLARA COUNTY, SAN MATEO COUNTY

 Mediation is an alternative to traditional litigation described in this website in an article on Divorce Law. It differs from traditional litigation in that it presupposes that divorce is a problem to be resolved instead of a battle to be won..   In mediation, the parties themselves discuss and negotiate the settlement, aided by the mediator.  The mediator is a professional trained in conflict resolution and ideally, family law litigation,  who acts as a neutral in the process.  As a neutral the mediator does not represent either party, but guides the parties to identity and resolve the issues of their particular case.

There are many differences between traditional litigation and mediation.  In traditional litigation, each party retains a lawyer, and the lawyers direct the course of the case, including filing motions in court in order to obtain orders regarding property division, child support, child custody, spousal support, as the case may be,  conduct discovery, such as depositions and interrogatories, and represent the clients at trials that may be necessary to resolve conflicts.     In traditional litigation, judges are an essential part of the process, and are often called upon to make decisions for the parties.   Litigation is extremely expensive.     As an example, the typical cost for one court appearance by a lawyer to obtain a child support or spousal support award to one party ("Order to Show Cause") can easily cost $3,000.00 to $5,000.00, or more,  in combined attorneys fees.  There could be several court appearances thereafter, each costing $3,000 to $5,000 in fees.   Mediation can be completed , and a divorce finalized, for the fees paid to divorce attorneys for one court appearance.  

Successful divorce mediation is best conducted between parties having an element of trust in their relationship and a reasonable certainty of their marital assets.  As an example, mediation would be challenging if the parties are deeply mistrusting due to issues surrounding hidden assets, cases that can demand extensive "discovery" action to determine asset amount and location. On the other hand,  poor communication between spouses does not bar successful mediation.   In divorce mediation,  the parties are encouraged and empowered to express their grievances or misgivings in order to establish a businesslike milieu that makes successful mediation more likely.  

Mediation is conducted in a mediator's office, and is available in our Los Altos and San Jose offices.  The atmosphere is relaxed, as opposed to the rigid decorum of a county court house.  Mediation typically lasts five or six sessions, but there are exceptions, depending on the legal and factual complexities and communication styles of the parties. 

In some cases the parties hire experts to assist in the divorce mediation process.   For example, if one party wants to buy the other's interest in the family home, it may be advisable to hire a real estate appraiser to prepare a written opinion on the fair market value of the home.  If employee benefits such as a pension plan, 401K, or PERS plan, are divided, the divorcing couple may hire a forensic accountant to value the community property  and the separate property interest in the plan.

The goal of  divorce mediation is met when the parties have agreed on the contents of a Marital Settlement Agreement, the document that divides community property and separate property assets and debts and, if applicable,  sets forth terms of child custody, child support, and spousal support.  The Marital Settlement Agreement is an integral part of the Judgment of Dissolution documentation, and when these documents are approved and filed with the court, the parties are returned the status of single persons.  However,  there are instances when the services of a dissolution mediator are used in "post-judgment proceedings".   Divorced persons may turn to the services of a mediator for ongoing issues, such as modifications in child support and spousal support, or enforcement of the property division orders made in the Judgment of Dissolution. 

The law does not require a mediator to have any special training or certification (except for certain custody mediators part of the court system).  There is no licensing requirement for mediators in California--anyone can provide mediation services.  Neither is there any requirement that divorce mediators have legal training, a law degree, or admittance to the California State Bar.   In addition to mediation certification through the County of Santa Clara, Vivian Carlson has received advanced mediation training in complex family law matters.    As a family law lawyer for over 25 years, she advises the parties regarding the legal aspects of their decisions according to California Family Code and California case law decisions.  As a family law litigator she informs clients of the likelihood of a judge's decision if the parties were to go to trial in the Superior Court of California. \