In traditional divorces, the parties hire lawyers, who bring the case to the Superior court, wherein a judge is called upon to make “orders” that divide the marital property, marital debts, order spousal support and child custody, as applicable. The traditional process is inherently adversarial because lawyers are trained to take cases to trial. In the months or years before a trial takes place, there are hundreds of laws and procedures that lawyers, and the parties, can use to establish dominance of one side over the other, obfuscate the issues, delay settlement, and cost huge sums of money.
Mediation differs from traditional litigation in that it presupposes that divorce is a problem to be resolved instead of a battle to be won.
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. And, although all divorces require the filing of documents that become pubic, the mediation process is private, behind the closed doors of the mediator’s office. Anything said is confidential, with rare exceptions.
The benefits of mediation are that lawyers are eliminated from direct negotiations, judges are not called upon to make decisions, and court appearances and the time and money necessary for this activity are eliminated. As an example, the typical cost for one court appearance by two lawyers to obtain a child support or spousal support award to one party (“Request for Order”) can easily cost $3,000.00 to $10,000.00 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. 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 typically lasts five to ten sessions, depending on the legal and factual complexities and communication styles of the parties. For instance, mediation is streamlined when the parties can complete the paperwork required by law with minimal assistance of the mediator. Also, discovery issues can delay the completion of mediation. For example, California divorce law requires production of certain documents to prove the existence of community and separate property assets and debts, and if not produced, the aggrieved party in mediation can insist on production of these documents from that party, and even the business entity who possesses the documents. 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 might 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, 401 K, 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 document, and with the filing of this document, divorces are ended and 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 basic mediation training Vivian Carlson has received advanced mediation training in complex family law matters. As a family law lawyer for over 24 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.
If you would like to meet with San Jose Mediation Lawyer Vivian Carlson please contact her at (408)287-3999 (San Jose location) or (650)941-3940 (Los Altos office) for a free initial consultation. * It is impermissible to privately mediate in domestic violence cases.