Divorce Mediation Process

FREQUENTLY ASKED QUESTIONS

What is Divorce Mediation?

When a husband and wife[1] in a divorce have a dispute, such as those surrounding a child’s visitation schedule or support amounts, and those parties are unable to reach agreement between themselves but want to try resolving their differences without going to court, they can ask for help from a neutral professional “Mediator.” A mediator, usually a family law attorney, listens to each side and identifies their disputes, motives, and desires, as well as the areas where settlement may be possible. The mediator will then use this information in seeking to craft a solution acceptable to both parties.

Should the parties reach agreement with the help of their mediator, that mediator (or their attorneys of record, should they also have their own lawyers) can use those terms in drafting settlement papers, whether a Marital Settlement Agreement or Stipulation and Order.  If the parties don’t have their own attorneys, they should have the opportunity to review this draft agreement on a consultation or coaching basis with private counsel before executing the final document. Then the signed agreement can be submitted to the court to become court orders and part of the case file.

If parties are willing to make compromises in order to move forward promptly and efficiently, a capable family law mediation attorney retained at  the outset of their divorce or custody proceedings can be a wise investment who  in guiding the parties through the process.  Such parties might consider consulting with a mediator before filing any paperwork in order to collaborate on a plan to streamline the whole process.

Can I use Mediation in my Case if the other Party and I were never Married?

Mediation is a tool to help solve any dispute.  It is frequently used in family law to resolve child custody, visitation, and support issues whether or not the parties were married, and even to reach mutually acceptable prenuptial agreements prior to marriage.

What are the Benefits of Divorce Mediation?

If the parties are able to reach agreement with the help of their mediator, benefits may include:

1) Time: Using a mediator to reach agreement tends to be a faster process than having a judge make decisions in court. Getting orders from a judge requires writing declarations, assembling admissible evidence, filing requests for orders and/or trial papers, waiting for hearing, and spending at least one weekday morning in court. This can take months.

Mediation is more controlled and accessible. Some mediators will meet with parties in evenings or on weekends so they can avoid missing work. Regular sessions may be scheduled until the issues are resolved, reducing the time spent waiting for court hearings. Most papers provided to your mediator are not filed with the court and can be less formal than what you’d want to put in front of your judge.

2) Money: Family law mediations usually use an attorney as mediator, meaning that you’ll be paying for the time of a lawyer, typically costing $250 to $450 an hour or more. Your mediator might request a retainer of at least ten hours of his or her time before beginning work on your case. This isn’t “cheap,” but costs are relative. If both parties expect to otherwise pay lawyers to litigate their dispute, they should ask their prospective attorneys what they estimate in costs. A Request for Orders on Custody and Child Support could easily cost each party $5,000.00, meaning $10,000.00 or more could be paid between them. If informal resolution is possible, paying a mediator can prove a more manageable cost than litigation counsel.

3) Control: Mediating any dispute is essentially negotiating a contract. By mediating your contract instead of having your judge impose orders on you and the other party, you could see two distinct advantages of this control.

The first is that parties can contract for terms that their court wouldn’t be able to order. For example, a mediated agreement could include terms for financing children’s college tuitions, which is otherwise outside what family law courts can order.

The second relates to the level of precision available in crafting agreements, which may be greater than what judges are willing to consider and issue in decisions. Complex visitation schedules and specific financial arrangements involving community property or spousal or child support may be more finely-tuned in a mediated agreement than a court order based on the limited amount of time a judge can fairly dedicate to any individual case.

4) Confidentiality: Most divorce pleadings are public record. While courts will designate certain items as confidential (like custody evaluation reports), most files are accessible as public record and some parties might not want sensitive details of their disputes on file at the courthouse, available for review and copying by interested third-parties.

5) Psychological: Reaching a mutually-acceptable agreement can feel better than having a judge impose orders.  Where court is used and parties feel they “lost,” that “losing” party is more likely to challenge the court order or seek modification.  Perceiving unfairness, that party might be reluctant to even follow the order, leading to further disputes and enforcement problems. On the other hand, where parties agree to terms, they are more likely to accept them mentally, to follow them, to feel better about the arrangement, and to be on better relational terms with the other party, particularly important in cases where children are involved.

This doesn’t mean parties always feel “good” after successfully reaching agreement. Mediation requires compromise, and points conceded in reaching compromises can leave parties feeling unsettled.  That doesn’t mean the agreement is bad or inappropriate. On the contrary, where both parties feel a little disappointed after reaching a mediated agreement, that serves as an indication that both parties have compromised, reflecting success in the mediation.

What are the Disadvantages of Mediation?

You might not settle. If you don’t settle with mediation, you’ll still need to go to court to obtain any necessary orders, and the funds you invested in mediation will be spent and unavailable for litigation. The good news is that parties who recognize this potential downside tend to negotiate with a greater dedication to reaching agreement. That dedication can bolster willingness to compromise, which is central to negotiating an agreement acceptable to both sides.

Tips for Divorce Mediation

1) Before agreeing to mediation, consider whether mediation is likely to result in agreement in your case. The following exercise may be helpful. If you write down your answers to the questions below, make sure to keep your document private and confidential. You can share it with your own lawyer should you consult with one individually or enter a confidential coaching agreement, but do not share your writing with your mediation attorney because you will not share a confidential relationship with him or her. Keeping this document confidential is necessary to control how much your opposing party knows about your position so you can agree to points of compromise in a manner that best serves you during the negotiation process.

a. List the specific disagreements you have with your opposing party that you would like to be resolved with mediation.

b. Beneath those issues, describe what you want to see happen.  For example, if custody is at issue, you might use a calendar to create the sort of monthly schedule you think would be best for your children.

c. Next, write what you think or understand that your opposing party wants the result to be for each issue.

d. Consider what you’d be willing to agree to if it meant closing the dispute. You can note those for your own reference in determining your “bottom line,” meaning the farthest you will bend before choosing to go to court rather than agree to a lesser arrangement.

e. Identify what you’d be willing to give your opposing party that he or she wants.

f. List the non-negotiable points that you need in any agreement.

g.  Separately identify those points on which you believe your opposing party will not compromise.

Now, within that framework and considering your dispute as a whole, do you see the potential for you and your opposing party to reach agreement on the terms at issue? If so, mediation may be a sound investment.

2) Account for Personalities: Consistent with the above analysis, recognize that some personality types tend to be less-willing and/or less-able to compromise. For example, should you be in the unenviable position of divorcing a man or woman whom you believe to have Narcissistic Personality Disorder, and if any issues on the table are non-negotiable for you, it may be advisable to lawyer-up with the best representation you can afford, because your prospects of reaching a fair settlement with informal mediation are relatively low. Skilled mediators and better lawyers understand NPD well enough to massage narcissists toward fair resolution, but the profound insecurities these disputes trigger in NPD parties tend to raise such bitterness and desire for vindication that – depending on the resources you have available and how badly you want to fight your case – you might be better off diverting mediation funds toward litigation.

3) Be Prepared and Have Proposals for your Disputed Issues: Experienced negotiators understand and employ “Anchor Points.” By being the first party to present a plan, you can harness an important cognitive bias. While the concept of Anchoring is studied and certain aspects disputed, the essence is this: The first plan put on the table in negotiations, whether for child visitation schedules, division of community assets, or most other issues, can serve as the “Anchor Point” for those negotiations. That means that later proposals tend to be crafted to “pull away from” the anchor of that initial plan. The net effect is that the outcomes of negotiations tend to land closer to their anchor points than they would be if that initial offer had not been placed.

While that first offer may be crafted to suit your side, don’t shoot for the moon by asking for things to which you are not entitled or proposing a woefully unfair plan. As a matter of good faith in negotiations, you should be able to explain why each part of your proposal is appropriate. If you’re offering a visitation plan, be prepared to explain why your proposed schedule is best for the children. If you’re requesting reimbursement from a down payment you made for a shared home, find and print statements (if you have them) reflecting your separate property contribution. Being prepared will help you project confidence and strength, make efficient use of your mediator’s time, and lend you advantage in pursuing a favorable settlement agreement.

4) Do your Homework: If your mediator is helping guide you and the other party through your divorce case, that mediator may instruct you to complete paperwork, such as your Preliminary Declarations of Disclosure. These “PDODs” must be exchanged in order to become divorced and for your mediator to complete any stipulated judgment. When you receive these assignments from your mediator, complete them promptly. Delaying can otherwise result in a longer process with higher fees and costs, while also projecting laziness, disinterest, or foot-dragging that could damage your image in the mediation process.

How long does Divorce Mediation Take?

The length of time mediation requires depends on the relative complexity and number of issues in the case and the willingness of its parties to compromise. The time required goes beyond the hours you’ll spend meeting with your mediator. Many family law mediators assist by drafting your judgment and reviewing records outside mediation sessions. Complex judgments for dissolution can require weeks or months in negotiations. Simple judgments might be assembled in a shorter time, possibly requiring three meetings with the mediator.

As with litigation, it can’t be determined in advance exactly how much time will be required. Should your mediation take longer than anticipated, you’ll need to make decisions about whether to continue with mediation or pull that plug and resort to litigation to move forward in resolving your case. That decision is made by considering what progress has been made and whether settlement appears possible or if it makes more sense for you to cut loose and proceed to court to have a judge determine your remaining issues.

How much does Divorce Mediation Cost?

Lawyers sell their time, so the amount you’ll pay for mediation depends on how much time is required. Many mediators require a retainer of $3,500.00 or more to begin work in a divorce case. That amount may be less where the parties need help resolving narrow issues.

As with paying litigation attorneys, the cost of your mediation may not be limited to, or may not cost all of, your retainer. Attorneys usually add up the time they spend on each case on a monthly basis and invoice their clients for the sum due, then remove the amounts billed from client retainer accounts. Your mediator’s retainer agreement probably requires that you maintain a certain amount of funds on deposit with him or her, so when your retainer balance falls below that amount, you’ll be responsible to “replenish” the retainer to the balance required by your retainer agreement.

For example, suppose your mediator requires a retainer of $3,500.00, with $2,000.00 to be maintained on deposit at all times, and you and your opposing party together pay the retainer of $3,500.00.  Then the mediator begins work, and the mediator might spend ten hours in her first month at $300.00 per hour for a total bill that month of $3,000.00. At that point, you’d have $500.00 left in your retainer and you and your opponent (depending on your payment arrangements) would need to advance an additional $1,500.00 to the mediator to bring your retainer balance back up to $2,000.00.

Continuing with that hypothetical, suppose your mediator proceeds to draft the agreement and finishes with two more hours of work, for a total cost of $600.00 in the second month. That $600.00 would be deducted from your $2,000.00 on deposit, leaving $1,400.00, which would be returned to you (and/or to the other party depending on your payment arrangements) when your case is complete.

Who Pays for Divorce Mediation?

Mediation is voluntary, so payment for the costs involved is decided between the parties. Oftentimes, the costs are split equally. Where one party has greater income or financial resources than the other, perhaps the costs would be apportioned on an unequal basis, say 65% / 35%.

It may be unwise for either party to agree to foot the entire bill in advance. Mediation carries a higher likelihood of success where both parties have a stake in the game. One can imagine a situation where one party pays the entire retainer and the other sits back with arms-crossed and refuses to compromise. That could result in the paying party having burned his or her mediation retainer and having that much less available for his or her litigation and personal expenses.

Where both parties invest in mediation, they share closer interests in making the most of that mediation time, which may make them more willing to compromise to secure agreement and successfully complete the process.

What Happens if Mediation Doesn’t Work?

If you need a court order (for child visitation, support, or the use or sale of a family home, for example), and if you’re unable to agree on those terms in mediation, your other method of getting that relief is by applying to the court and requesting those orders.

Understand that you might reach agreement on some issues and leave the rest for your court to decide, which can still result in greater efficiency by reducing the parts of your case that have to be litigated.

Can I Mediate if I Don’t Have a Lawyer?

Yes. One format for resolving family law disputes that is becoming more common is for parties to represent themselves in mediation while retaining and working with an outside-lawyer on a consultation or “coaching” basis to help educate them on the law and review any proposed agreements before those agreements are signed.

Should I Mediate my Divorce?

The life changes parties face in separation and divorce can be among the most stressful chapters they ever experience, with severe financial and personal consequences. Adding to those hardships, the court process for dissolving marriages lasts months, if not years, and can cost tens of thousands of dollars if the parties employ attorneys. Further increasing uncertainty and anxiety, litigation relies on judges to make important decisions, and those judges have only the cross-section of facts available to them.

Resolution is valuable. Control over outcome is comforting. When parties sign their divorce judgments or agree to child custody plans, they get to conserve the emotional energy that they were previously pouring into those conflicts.  If you believe your case can be resolved using a mediator, raise the idea with your other party. If the two of you are on the same page, research and consult with mediators until you find one you both trust. The decision of whether to work with them is up to the two of you.

What are my First Steps to Mediate my Case?

If you have further questions about mediation or wish to discuss how mediation could help resolve your case, call our office at (626)405-2914.  Initial consultation appointments may be held with both parties together or separately as circumstances require.

 

[1] These premises apply equally to same-sex partners.  Male / Female pronouns are used for clarity in hypotheticals.