Newport Beach Family Lawyer Paula J. Swensen on Divorce Mediation

How does divorce mediation work?

Mediation is an extremely desirable alternative to litigation. Mediation is a form of dispute resolution where a neutral third party, the “mediator”, assists the parties in resolving some or all of the issues in their dispute. In the case of a divorce, or other family law matter, this process may include resolving issues of child custody, child and spousal support, prenuptial/marital agreements, property division, and any other issues that may arise in connection with a divorce or other family law proceeding. The mediator does not tell the parties what to do, but rather assists the parties in fashioning a resolution that is satisfactory to both of them. The parties in mediation may or may not be represented by counsel. The number of mediation sessions necessary can depend on the parties themselves, and on the complexity of the issues in dispute.

What are the benefits of mediation?

There are many benefits to mediation. It is much less costly and time-consuming than litigating a divorce. Unfortunately, our court system is overburdened and understaffed. It can take months and even years to have your matter heard in front of a judge. Mediation also tends to reduce the emotional impact of the divorce on both the parties and their children. It is also desirable because the parties take an active role in fashioning a resolution that works for their family, as opposed to rolling the dice in front of a busy judge who knows nothing about them or their children. The confidential nature of mediation is also appealing to parties who dislike the notion of airing their family dispute in a very public forum.

Do mediators provide legal advice?

No, they are not supposed to. Remember, a mediator is a neutral, third party whose job it is to facilitate the resolution of the issues that are in dispute between the parties. Mediators can be very helpful in assisting and even guiding the parties to a resolution, but it is not their role to tell the parties what to do. One of the keys to a successful mediation is that the parties themselves take a proactive role in coming to a resolution that best fits the needs of their family. Many studies support the finding that implementation and compliance with a mediated resolution is much smoother than with a court-imposed outcome. People more readily “buy into” their family law orders when they have had a hand in creating them.

How do we know if mediation is the right divorce process for our situation?

Well, let me answer it this way: If you want an efficient and cost-effective way to work through your divorce, mediation is probably right for you. If you want to have a hand in fashioning the outcome that works best for your family, mediation is probably right for you. If you want to resolve your divorce-related issues with the least amount of emotional detriment to your family, mediation is probably right for you. Remember, if you try mediation and feel that it’s not working, you can always go to litigation, if necessary. For family law matters, litigation should be the process of last resort.

Can I give the mediator confidential information: something that I don’t want him or her to share with my spouse because it could derail the process?

Yes, each of the parties has the right to ask the mediator for what is called a “caucus”. It is a brief, one-on-one discussion with the mediator, out of the presence of the other spouse. This is sometimes helpful in breaking an impasse that may arise during the mediation process. The mediator must honor a party’s request not to disclose certain information that the party wishes to remain confidential. Sometimes making the mediator aware of certain information is quite helpful to the mediator’s ability to assist the parties in breaking through an impasse that may have momentarily impeded their progress in reaching a resolution.

How much does mediation typically cost? How does the mediator charge for services?

Just as costs vary for litigation here in Orange County, and from lawyer to lawyer in any given case, it is best to check around and ask about how the fees are charged as you interview potential mediators, to find one that is a good fit for your particular situation. Many mediators charge an hourly fee that is billed against a retainer, just as a family law litigation attorney would do. That is what we do here at our firm. The size of the retainer can depend on the case’s complexity and the number of issues to be mediated. Less frequently, a mediator may charge a flat fee, regardless of the number of hours spent. However, as to cost, what I can say is that, as compared with litigation of a family law matter, whether it’s a divorce or a post-judgment matter, mediation is a much more cost-effective way to resolve those issues. Litigation can be prohibitively expensive for many people facing divorce. Divorce is difficult enough without the added stress of being forced to incur thousands of dollars for the privilege of getting divorced.

Can mediation be used in child custody cases?

Absolutely. In fact, mediation is particularly well-suited to the resolution of custody issues. Mediation fosters cooperation and the ability to create win/win solutions. It is well-documented that the impact of divorce on children can be greatly mitigated by how the parents treat each other during and after the divorce. Children do not wish to choose between their parents, and being placed in a courtroom “tug-of-war” is just about the last thing you want to do to a child whose parents are divorcing. The mediation process is much more conducive to achieving family-friendly results which minimize the negative effects of the divorce on the parties’ children.

Can mediation be used in complex high-asset divorce cases?

Yes, just as mediation is often used in complex, high-asset commercial cases. In fact, mediation can be a much more time-efficient way to address these complex issues. It can take days, spanning a period of many months, to put such detailed evidence in front of a judge in a courtroom. In mediation, the parties are able to utilize the services of a forensic accountant just as they would if they were litigating their case, only in a much more focused and time-efficient manner. As always, it is advisable to seek out an experienced family law specialist as a mediator to ensure that you are mediating your complex issues in the optimal setting.

Can mediation be used for professionals and business owners who are going through a divorce?

Yes, and in fact, it can have important advantages over litigating these issues in open court. Obviously, the courthouse is open to the public and anyone can sit in the courtroom and listen to your issues being dissected and scrutinized. For some business owners, that is reason enough to find an experienced family law mediator who can assist the parties to resolve their dispute in a confidential setting.

What are the advantages of working with a mediator who is also an experienced family law specialist?

The advantages of working with a mediator who is also an experienced family law specialist cannot be overstated. The family law specialist can prepare all of the necessary paperwork to complete the divorce. Also, the family law specialist knows the law, and this can prove invaluable to the parties in a family law dispute as they try to negotiate a resolution. Often parties have no idea about the strength or weakness of a particular position. While parties in mediation are encouraged to come up with their own creative solutions to their issues, it is often helpful that they have a working understanding of how a court might view their particular position on an issue. The ability to have this “reality check” is invaluable in reaching a mutually satisfying resolution. It is recommended that parties considering mediation should not only look to someone who is a good “fit,” from a personality standpoint, but also someone who is an experienced family law specialist who can better assist them to resolve what can be challenging and complex family law issues.

You just mentioned that a family law specialist can assist with drafting of documents. Does that mean that you typically draft your divorce agreement for your mediating clients?

Absolutely. It’s sort of one-stop shopping with the process for divorcing parties who mediate here in our office. We assist them to arrive at their agreement and then we assist them with all the necessary paperwork that’s required by the court, and the parties never have to step foot in a courtroom.

Are mediators governed by rules, a code of ethics, or an organization?

Here in California, there is no formal certifying or licensing agency for mediators. This lack of formal regulation requires the consumer to do their homework in interviewing potential mediators for their particular family law matter. California does have various certificate programs that have arisen from the Dispute Resolution Programs Act of 1986, which require a minimum of 25 hours of mediation education and training. However, many consumers are not aware that an individual can hold themselves out as a mediator, but that person is not required to take any special training, and is not even required to be an attorney.

Can you mediate specific issues without having to mediate the whole case?

Absolutely, and there are many benefits to that. The courts are so overburdened, both in personnel with lack of judges and lack of court time, that a typical divorce case that may have eight issues, if you could knock out of four of them in successful mediation, that’s all to the good. That saves the parties time in the long run. Mediation is usually a process that lends to less of an acrimonious atmosphere between the parties.

If a divorcing couple can’t be in the same room without fighting, can they still mediate their divorce?

Yes, they can. Some mediators in those situations would find that it’s beneficial to do what we call shuttle mediation, which is sort of like shuttle diplomacy, where you have the parties in different rooms and the mediator talks one-on-one with each of the parties and just shuttles back and forth between the two parties. That’s a little less common than the model where both of the parties are in the same room with the mediator at the same time. But in the case where the conflict is running that high, you can have success reaching agreements in doing it that way.

How should a divorcing couple prepare for their first mediation session?

I would suggest that they come prepared with their list of issues that they want to have addressed, and certainly for the first session so that those things can be laid out on the table. In future sessions, the mediator will often guide the parties in doing some “homework” and perhaps bringing certain documents to the next session.

Depending on whether the parties are working on financial issues, they may need to bring financial documents such as tax returns or a bank statement, that kind of thing. But I would say that it’s most important for the parties themselves to have the issues that they want to have addressed and then it’s the mediator’s job to guide them through that discussion issue by issue.

Will both spouses need to hire their own lawyers in addition to their mediator?

No, not necessarily. Some people do find it necessary to have their own counsel, and that’s fine, and some people don’t. As the parties are going through the mediation process, they may find it necessary to bounce ideas off of their own lawyers, or the person that’s not represented by counsel throughout the process can simply take the finished agreement that the parties have worked out in mediation to the lawyer of their choosing for review.

If the mediator is a good, solid mediator, grounded in family law, the mediator should encourage the party that does not have counsel to take the agreement to a lawyer to make sure that the party is properly counseled on whether the agreement is protective of that party’s rights, etc.                             

It is not necessary during the process to have counsel, although many people choose to have counsel sort of waiting in the wings until an agreement is reached and then they’re able to ask questions of their own lawyer. But I’ve mediated many cases both ways, so some with counsel and some with no counsel.

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