Divorce Mediation Frequently Asked Questions
Going through a divorce can be emotionally taxing, extremely costly, and legally confusing. Choosing divorce mediation can help alleviate those challenges as mediators support individuals in processing any issues that arise all while maintaining the autonomy and agency of those involved. If you are looking to file for divorce, mediation will create a space for you to find amicable resolutions with less conflict and legal costs.
Questions regarding mediation are normal; we have compiled some frequently asked questions and provided answers!
Divorce mediation is a popular process used by a couple in divorce to avoid a costly and lengthy divorce trial. With the assistance of a neutral third-party mediator, agreements are reached on all divorce issues: division of property and debts, spousal support, parenting issues including time-sharing, child custody, and child support. Since all agreements are made in mediation, spouses never have to enter a courtroom and can avoid the conflict and stress of litigation.
In mediation, spouses make their own voluntary decisions and personalize their divorce terms to meet both of their needs. The choice to settle the case and avoid court is always up to the spouses and which process will work best for them. Spouses tend to be more satisfied with the mediation process compared to litigation due to several advantages including the fact that spouses can discuss their interests in mediation and therefore have the opportunity to have their interests met.
Mediation can occur in person, over the phone, and through video conference. Depending on the circumstances, mediation meetings can happen with the mediator and both spouses together (often called “joint session”). Mediation can also involve the mediator meeting with each spouse privately (often called “private caucus”) to discuss the needs of each party and find a way to help the spouses come closer to common ground.
Unlike the public nature of the litigation process in court, in most states, “mediation confidentiality” is protected by law. This means that all communications in mediation and disclosure of documents are confidential.
In comparison to the unknown timeline of a full-scale divorce suit that will end up in a trial, the length needed to complete mediation will be clear early on in the process. The average length of mediation usually involves at least three to four two-hour mediation sessions, spread out over at least a month or two. More complex cases can take between four to six months to complete. In addition to the timeliness of mediation, you will never have to feel as though you and your children’s futures are in the hands of someone other than you and your spouse.
A mediator is unlike a judge for several reasons. Most importantly, a mediator does not decide who is in the right or the wrong but rather focuses on finding a solution that meets the needs and desires of both spouses. A mediator will not impose his or her conclusions about how the issues should be solved. If necessary, a mediator might offer suggestions, but the most effective mediators will enable the spouses to generate their own solutions and agreements. Mediators do not make any kind of ruling on the case so spouses can spend less time trying to convince the mediator that they are right and instead focus on creating a joint resolution.
Before committing to using the services of a particular mediator, spouses should confirm that the mediator has extensive training beyond the minimum requirements, has considerable experience mediating, is dedicated to helping spouses get the most out of the process, and is the right fit for the personalities involved.
Being a lawyer is not a requirement to be a mediator. Even if your mediator is a lawyer, he or she cannot be your lawyer because a mediator must remain unbiased. For mediation to be successful, it is critical that participants feel comfortable with their mediator’s ability to remain neutral. It is very important to seek the advice of your own qualified and trusted attorney, who will look out for your best interests, before committing to a settlement agreement.
Every mediator has a different approach to the process so all participants must be comfortable with the mediator’s personal style. Some mediators use an evaluative style: freely evaluating the strengths and weaknesses of each side’s case (in private sessions), to help them assess their alternatives and make wise choices in the mediation. Other mediators are more facilitative: refraining from asserting their judgments and instead facilitating a conversation that draws out the assessments of the spouses themselves. Transformative mediators are somewhat similar to facilitative mediators in that they are focused on the spouses’ needs and points of view. In transformative mediation, the spouses control both the process and the outcome. A creative mediator will be able to use any or all of these approaches when appropriate and may even ask the participants for their input regarding their desired approach. An effective mediator will manage the process in a way that moves participants forward, toward a resolution, with the spouses’ own unique goals and interests as a guide.
When searching for the right fit, most mediators will be happy to spend a few minutes speaking with a potential client at no charge to explain the process, answer any questions the client may have, and allow the client to determine whether the mediator would be a good fit.
Mediation is a private and confidential process; another advantage of divorce mediation. Spouses meet with their mediator as often as agreed upon to finalize an agreement they are happy with, with no public record attached. At the end of the process, the final agreement is taken to court to make it an official order, making that document the only public record of the divorce. The value of assets and debts can even remain private in your final agreement so that they are not explicitly shared in public records. One exception to privacy includes when divorce mediation is court-ordered. In that event, all matters prior to mediation will be public record.
Online mediation is fast, efficient, and effective and may be more accessible for some couples. The sessions can occur over a multitude of video conferencing services like Zoom or Google Meet and if needed, via conference call. The mediator will engage in mediation as though they were meeting with the couple in-person and focus on facilitating a discussion geared toward coming to a mutually acceptable agreement. As mediation comes to a close and a final agreement has been written, documents requiring signatures can usually be signed and transmitted electronically.
Conducting divorce mediation sessions remotely provides several benefits for divorcing spouses, including:
California is a community property state, which means that any income or property earned by either partner while married will be split equally between them during the divorce. California is only one of nine states that have community property laws. Decisions made in court will vary significantly depending on which state or country jurisdiction the agreement falls in at the time of the divorce.
Mediation helps keep courts out of the division of property and instead places the decision in the hands of the couple and family. Through the help of an unbiased third-party mediator, couples experiencing a separation can resolve their issues regarding the division of property and debt without having to resort to a court’s decision-making process.
Debt division is included in the property division process and varies based on community property or equitable division status. It is common for couples to have accumulated high amounts of unsecured debt, with little asset acquisition during the marriage. In these cases, the debt division process is more complicated and if unresolved between the spouses, the courts will determine the division based on rationales provided by state law.By partaking in mediation, couples have the power to decide how they would like to divide debt and other liabilities and obligations without having to involve the court in the decision-making process.
Laws determining whether or not one party will be required to make support payments to the other party once divorced and how long said payment should be made vary by state. Community property states like California consider a wide range of factors that can be found in the Family Code Section 4320. Mediators can help reduce the conflict and tension that typically surround this issue and support both spouses in collaborating peaceably without the need to go to court.
Separating from your partner can be a costly process. In mediation, you control that cost. Divorce mediation is not nearly as expensive as a divorce trial or custody suit as a trial alone can cost thousands of dollars per day. Most family and divorce mediators charge by the hour and only charge for the time spent working on the case. Mediation generally costs between five and ten thousand dollars whereas one divorce hearing alone could cost that much. Having a separation agreement already prepared before beginning mediation can lessen the costs of mediation even further.
The money saved by choosing mediation over an exhausting divorce trial can be put towards children’s college tuition or even a few relaxing beach vacations to create lifelong memories with your loved ones.
Before going into a mediation session, all parents are encouraged to go through the parenting tools and resources on UpToParents.org like the Divorce Mission Statement and utilize the books and podcasts found on FocusOnTheFamily.com. The parenting site CoParenter.com provides easy-to-use tools to draft successful letters to your co-parent and to develop and tweak your parenting plan. It is also recommended that parents use the suggested age-appropriate parenting plans provided by the Orange County Superior Court and the communication tools of OurFamilyWizard.com as resources to help your children through this process.
When a child experiences a high-conflict divorce, it can leave lasting psychological and emotional harm. Although it may not be the parent’s intention, children often feel forced to choose sides. Parents may even actively try to alienate the child from the other parent without realizing the impact it can have on the child. As a parent, it is natural to want to fight to protect your relationship with your child but often it is the endless fighting that does the most harm.
Mediation reduces the likelihood of childhood trauma from divorce by reducing conflict, providing positive approaches to family communication, and demonstrating collaborative decision making. Parents are encouraged to consider mediation because of benefits including but not limited to:
In countries where family mediation is an accepted adjunct to litigation, research has shown that in cases where mediation is utilized, there is greater potential for the development of optimal co-parenting relationships as well as ongoing parental cooperation. Research also shows that agreements reached through mediation are more likely to be adhered to by the parents. Parents’ ability to develop customized outcomes that meet their and their children’s unique needs and requirements during mediation are more likely to succeed in implementing the terms of the agreement.
Once your final agreement is presented before a judge and the seal has been set on your mediation agreement, it is considered a legally binding contract. For example, if you run into problems with parenting time, real estate conflicts, or any other point of contention after the divorce is finalized, any enforcement agencies involved in resolving those conflicts will refer to this order as law. Although the mediation agreement is a more informal and less expensive process, it is just as serious and legally binding once the process is complete.
Balakhane Mediation is now offering Online Divorce and Family Mediation Services. Online services include private and confidential video conferencing for both the initial consultation and all mediation meetings. Choosing to engage in online mediation is easy, simple, and convenient!
The last several weeks have been a trying time for us all. As parents, our roles have intensified under unforeseen circumstances, and the pandemic makes us all worry about our loved ones and their futures. Co-parenting issues under the lockdown mandate can seem impossible, and the impact on salaries and the global market may generate uncertainty regarding your settlement agreement.
Leyla is here to offer her support and expertise to ensure that such matters are resolved for the benefit of both spouses and most significantly, the children. Please do not hesitate to reach out and let Leyla help you through these difficult times.