Mediation FAQs

• Is it true that going to court is the only way to ensure that you’ll get your fair share?
• Can I mediate all of my family law issues, including child custody?
• How do I choose an effective family law mediator?
• Why is that important?
• Is the mediator permitted to “take sides”?
• What are the benefits of mediating my family law matter?

Is it true that going to court is the only way to ensure that you’ll get your fair share?

No, it is not true that the only way to ensure that you’ll get your fair share in a divorce is by going to Court.

Most often, court is a place of last resort. These days, budget-strained courts are overloaded with family law cases, many involving self-represented individuals. The vast majority of divorce cases are settled without the necessity of going to court, through a process of informed negotiation, in an effort to achieve a fair result for both parties.

Any issues relating to a divorce such as custody, support, property division and attorney’s fees may be negotiated and agreed upon by the parties and their counsel. The parties would still engage in some type of discovery process whereby the assets, obligations and incomes are determined. Once an agreement is reached, a Stipulated Judgment for Dissolution of Marriage (along with other required forms) is prepared and circulated between the parties and counsel for signatures. Thus, if they can agree on all terms of a settlement, the parties can achieve a fair resolution of all issues without ever going to the courthouse.

The benefits of this are many. No one is in a better position to understand what the best outcome is for a family than the parties themselves. Solutions can be more creative in a negotiated setting as opposed to asking a Judge to make a decision that may not be what either party ultimately wants. It is more cost-effective to resolve the matter in this fashion and because the parties actively participate in achieving their own resolution, the outcomes are often more desirable, and implementation of the agreement is more successful than if the result had been imposed upon the parties by the court.

Can I mediate all of my family law issues, including child custody?

Yes, all family law issues are capable of resolution through mediation, including the issue of child custody.

Often, the more contentious and emotional the issue (as is often the case with issues concerning minor children), the better suited the issue is for resolution through mediation. That is because the mediation process lends itself to creative problem-solving, taking into account many of the intangible issues and underlying feelings that serve to fuel the dispute in the first place.

The reality is that our court system is over-burdened and under-funded, and despite the best efforts of dedicated judicial officers, the court is not able to devote as much time to each family law matter as the parties would like. There are simply not enough resources.

That leaves the opportunity for creative and cost-effective problem-solving up to the parties themselves. As a result, mediation is becoming an increasingly popular choice for family law litigants who seek to expeditiously and economically resolve their issues.

How do I choose an effective family law mediator?

Not all mediators are created equal.

First, it is important when choosing a mediator that he or she is trained in mediation. That may sound obvious and over-simplistic, but because (unlike for attorneys) there is currently no licensing requirement in the State of California for mediators, anyone can “hang out a shingle” and call themselves a mediator, including non-lawyers.

Second, it is extremely desirable that the mediator be credentialed and well-versed in the subject area of the mediation. For family law mediation, that would mean choosing a family law mediator who is deemed by The State Bar of California Board of Legal Specialization to be a Certified Family Law Specialist.

Why is that important?

It is often critical to the success of a negotiated outcome that both parties fully understand the issues presented for resolution. That includes the legal issues that potentially would be litigated if the mediation fails.

While it is clearly never the mediator’s role to advise the parties of “what to do,” it is helpful for the parties to have a basic understanding of the potential significance of a legal issue, were the matter to be litigated in court. It is often helpful to a family law litigant during mediation to have a realistic view of the range of possible outcomes. This is where a trained mediator, specializing in family law can be invaluable.

Accordingly, when selecting a mediator for a family law matter, it is most often beneficial to utilize the services of a Certified Family Law Specialist.

Is the mediator permitted to “take sides”?

No, the mediator is a third-party neutral whose role is to assist the parties in reaching a mutually-satisfying resolution to their issues.

The mediator is never permitted to “take sides” with one party against the other. The mediator acts in the role of a facilitator, not an advocate. Often, parties in mediation will each have counsel who can advise him or her as they go through the mediation process. The party’s attorney is the advocate. The mediator has no stake in the outcome and her role is strictly designed to help the parties reach a resolution of their dispute.

If a party believes that a mediator has lost objectivity and neutrality, the mediation will likely not be successful.

What are the benefits of mediating my family law matter?

The benefits of family law mediation are many. First, it is an appreciably more cost-effective way to process and conclude a divorce. In litigation, costs often escalate in direct proportion to the level of contentiousness between the parties. While parties in mediation are seeking to further their interests and achieve certain goals, they are doing so in a more cooperative fashion than their litigation counterparts. This cooperative approach keeps costs down. Cooperation does not mean “giving in”. Rather, both parties seek to achieve his or her respective goals collaboratively, rather than combatively, and this has the added benefit of reducing the emotional impact during the process.

Mediation is also designed to afford the parties with the optimum level of input and control in fashioning a desirable outcome. Settlements can be creative and may provide for terms that would not otherwise be achievable from a judge. Contrast that with taking the matter to court and having a complete stranger decide the fate of the parties and their children, and doing so in an environment that is often hampered by delays and severe time constraints. It has also been shown that when parties work together to formulate an agreement on their own, it is more likely that the implementation of their agreement will be more successful that if it had been imposed upon them by a court.

One of the hallmarks of mediation is its confidential nature. In order to provide a forum conducive to the resolution of private disputes, candor of the parties is essential. Toward that end, there are strict rules in California regarding the sanctity of the discussions in mediation. This is designed to encourage openness and honesty in an individual’s efforts toward resolution and that openness might be lessened if a person’s words could be used against them in court. Thus, the substance of those discussions cannot be revealed during a litigated proceeding at court.

Mediation often results in a faster resolution of the disputed issues. As we have seen more and more recently, due to state budget cuts and other constraints, the time available for a judicial officer to hear a party’s matter is quite restricted. It is often the case that the matter is settled during the time that the parties are waiting to get to a hearing.

In summary, family law mediation is often a faster, less costly and more satisfying alternative to litigation as a means to resolve any and all family law issues.