Divorce Mediation FAQs
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Law Offices of Benita Ventresca408-395-8822
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Mediation and Litigation

Santa Clara County Mediation Attorney

California Divorce Law Mediation FAQs

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Why Mediate?

Family Mediation works — the parties stand by their mediated agreements: More than 80 percent of divorce cases mediated settle in mediation. (Kelly J. A Decade of Divorce Mediation Research; Family and Conciliation Courts Review (1996) 34(3) 373-385.) After their divorce case is mediated and settled, the spouses are more likely to stand by the terms of a mediated settlement such as abiding by the terms of the co-parenting schedule and making support payments according to the mediated agreement. The parties participate in making the mediated settlement and are more inclined to follow its terms. When the judge makes an order after court litigation, the parties may feel more resentment toward that order, as they have not participated in making the order.

Parties in mediation may each hire their own lawyers aside from the mediator to provide legal advice as they feel necessary. Their attorneys may also review any proposed agreement before the parties sign it. However, mediation usually entails far less attorney time — and a lot less total attorney fees than when the spouses engage in court litigation. Further the total cost of litigation is a lot more than mediation since each party usually is required to hire his or her own experts driving the cost of divorce even higher.

What Is Family/Divorce Mediation?

Family mediation is the mediation of disputes involving the following issues:

Mediation is an effective, efficient and economical method of dispute resolution and is essentially an assisted negotiation. An impartial individual with specific training and experience in dispute conflict management and resolution helps individuals settle their differences. The mediation process is private, confidential and cooperative. Rather than focusing on fighting, the parties are encouraged to work toward their common goals of an early, inexpensive and satisfactory resolution of their problem. The process tends to strengthen rather than damage relationships between parties. The power to decide remains with the parties.

Mediation is usually extremely beneficial to couples who are going through a divorce as well as to those who are already divorced and have a problem with their dissolution judgment and/or with their ex- spouse. Mediation can save time and money, and also promotes harmony and resolution rather than the conflict of court litigation.

Divorce mediation is a way to resolve the issues of a divorce in a manner that permits the couple to keep control of their own divorce. The only persons making decisions in the couples divorce process are couple actually obtaining the divorce. This is in contrast to a divorce proceeding in court where a judge makes the decisions instead of the actual divorcing couple.

Divorce mediation usually consists of meetings between spouses or parents (if it is a custody proceeding or a modification proceeding after a divorce) that typically last about one to two hours each session if this amount of time is convenient for the parties. During those meetings, the parties discuss the issues that they believe need to be addressed in their matter at that time. The mediator may suggest the order in which the issues are discussed. The mediator facilitates the discussions and the negotiations between the parties that generally occur during these meetings. The mediator may offer suggestions and assists in resolving the parties issues. When an agreement is reached, the mediator summarizes that agreement and then presents it to the parties for review and approval. If the agreement conforms to the agreement of the parties, then the mediator has the parties to sign agreement.

You Stay in Charge of Your Divorce When You Mediate

In mediation, the parties may stay in charge of their own divorce and their own divorce proceeding. The parties take an active role in resolving their disputes. The parties are given guidance by the mediator but do not lose control. Spouses in divorce mediation gain guidance to make informed choices and the knowledge to create fair agreements. The parties remain in control of their divorce. Court litigation, in contrast, places control in the hands of judges and the parties attorneys. Because the judge and the attorneys are in control, the actual outcome of the divorce cannot be predicted. In the mediation process the parties can be decision-makers in the important personal issues of their personal life, i.e., who will have custody of the children, the visitation plan, the amount of child and spousal support. The prior issues are usually resolved by the judge in court litigation.

Mediation Can Save You a Lot of Money

Mediation is usually far less expensive than litigation. It can save the divorcing couple a lot of money. Trials get very expensive, what with the cost of attorneys, expert witnesses and time taken away from work, etc.

For many couples divorce becomes financially devastating when they engage in an adversarial process of litigation. In this process, each spouse retains an attorney and then sometimes expert witnesses in the mistaken belief of gaining an advantage over the other.

Judge James W. Stewart, the former presiding judge of the Santa Clara County Superior Court (Family Division), states in Divorce Handbook for California (Impact Publishers, 2002): Realistically, you cannot gain a significant advantage in litigation by hiring a more skillful attorney. Judge Stewart then adds, Put aside the notion that your attorney is a great courthouse advocate whose skill and ability will hypnotize the judge. Your case is not going to trial before a judge — short of a miracle; if it does, it will be a financial catastrophe for you.

People reject adversarial divorce in favor of divorce mediation for several reasons. Many have heard, sometimes from family and friends, that a litigated divorce takes too long, sometimes four or five years, destroys relationships, causes misery and psychological problems to their children, humiliates both spouses, and rarely produces a settlement that either party thinks fair. Others resent the needless financial sacrifice that averages $45,000 per spouse in California, according to Judge James Stewart, who was a leading expert on family law and the adversarial divorce process in California.

Usually in a contested divorce proceeding, the client and the attorney must spend a great deal of time going to court, waiting for their own case to be called and sometimes having their case be continued to another day due to scheduling conflicts, etc. They must wait in the courtroom until other cases are heard first. There is a lot of wasted time that the parties must pay in attorney fees in litigated divorce cases. This is the just the nature of the court system and is not the fault of the attorneys nor the fault of the court system. The parties do not have to pay for this wasted time in mediation. Only their individual particular case is scheduled with the mediator. There is no waiting time for other cases to be heard.

Mediation Is Not as Harmful to the Children

Studies show that families that mediate their differences have a much better after-divorce relationship than families that litigate their differences in their divorce case. Mediation is beneficial in situations involving children, since it is in the interests of the children that their parents get along even if they no longer live together as husband and wife.

Youll protect your children from the trauma of a litigated divorce. Children are the most severely psychologically wounded in an adversarial divorce or separation. Children can be spared much anxiety when their parents choose mediation over litigation. The parents do not argue as much or try to gain an advantage with the children with respect to custody when they mediate rather than litigate.

How Does the Mediation Process Work

Mediation usually consists of meetings between the two spouses or parents that can generally last for several hours each. The spouses or parents themselves determine the length of the sessions along with the mediator. During those meetings, the parties discuss those issues that they feel need to be resolved. The mediators role is to facilitate the discussion, assist with communication between the parties, provide suggestions, and use his or her training to assist the parties to resolve their differences and then write up an agreement that covers those areas that have been resolved.

The actual mediation process usually involves sitting down at a table or desk in a neutral location where both parties will have the opportunity to present their side of the story in a non-confrontational way. In the first session the mediator will discuss the mediation process, and will decide with the parties and they will decide in the session how the session will unfold, like who goes first and how long they speak, whether you will have a joint session or speak separately with the mediator and whether you will have your individual attorney present at the session.

Your mediator will often write a summary letter about the parties session, the next agenda, tentative agreements, things to think about and what the proposed agenda at the next session. If other professionals must be seen by the parties, such as an accountant or if the parties must hire a consultant such as a house appraiser, then these letters will assist in delineating what consultants may be needed. When the parties find they need more information before they can enter into an agreement or before the session can continue, the sessions may be scheduled accordingly.

At the end of this process, the mediator creates a settlement agreement for your divorce and completes the paperwork through the court so that you end up with a court order or judgment.

Mediation Is Confidential

One of the advantages of mediation is that it is confidential. The emotional and perhaps embarrassing issues in divorce and child custody matters will be kept private, as opposed to a trial where all of the proceedings are public record and usually kept in the file at the clerks office. Mediation is confidential, as the process does not become part of the public record as a tried divorce case. This is especially important when the mediation concerns children.

The adversarial nature of a custody case can severely strain the ability of parents to communicate with each other and their children. Dealing with custody and child support in mediation can often prevent the bitterness that seems to go hand in hand with a litigated divorce. Mediation supports positive family interaction that helps the children who want a close bond with both their mother and father.

What Happens if the Parties Can't Agree?

Generally, mediation sessions are structured with a short agenda (list of issues) and then the decision of which issues will be discussed first. Usually, the parties start with the smaller and then proceed the more complicated issues. The parties will discuss and negotiate each issue until resolved and then proceed to the next issue until all of the issues are resolved.

What Are the Benefits of Mediation?

Divorcing families have better relationships after the divorce: The divorced parents are better able to co-parent after the mediation. The children are better protected from the trauma of a litigated divorce in which the parents are adversaries. Children sometimes suffer from psychological problems after an adversarial divorce or adversarial proceeding involving the children. Children often suffer from much anxiety when their parents litigate. The parents do not argue as much children with respect to when they mediate rather than litigate their divorce or matters concerning their children.

Divorcing parties make the decisions not the attorneys or a judge when they mediate: Mediation allows the parties, the clients, to have control of the divorce process rather than the judge, the attorneys or the court system. The final decisions made in the mediation process are the decisions of the divorcing spouses not the mediator nor the decision of the judge as in court litigation. In mediation both of the parties have had input resolving the issues. In divorce mediation, the couple controls both how and when the decisions are made. Further, in divorce mediation, the couple controls both how and when the case proceeds. The parties decide when to have their meetings, when to sign their agreements, etc.

According to former judge of the Santa Clara County Superior Court, Judge James W. Stewarts Divorce Handbook for California (Impact Publishers, 2002), mediation is less expensive than a contested divorce: The average cost of attorney representation in a contested divorce proceeding is $45,000 per spouse in California.

Mediation is less stressful: Mediation is a less stressful, and a more peaceful resolution to ending your marriage. Usually during a contested divorce, each spouse hires his or her own attorney. Then it becomes a bitter situation where often the spouses talk only through the attorneys. Sometimes miscommunication results, and the situation becomes more and more hostile.

You have a lot less chance of destroying your relationship with your spouse when you mediate than when you proceed by court litigation. Usually, when a party pursues litigation, the other party considers the process of being sued as a hostile act. Usually, the party is served by a process server with the summons and complaint. This is not a good start for future settlement.

Mediation on the other hand is conducive to a continuing civilized relationship between the parties. It is a process that does not force family and friends to take sides. Mediation allows for the resolution of the disputes with dignity. Mediation does not deplete the parties emotionally, as it is not combative like court-litigated divorce.

Why Choose Mediation Over Litigation?

Mediation works — and the parties stand by their agreements: Research indicates that more than 80 percent of divorce cases settle in mediation. (Kelly J. A Decade of Divorce Mediation Research; Family and Conciliation Courts Review (1996) 34(3).373-385; Benjamin M. Irving H. Research in Family Mediation: Review and Implications, Mediation Quarterly (1995) 13(1) 53-82.)

Judge James W. Stewart, former presiding judge of the Santa Clara County Superior Court, states in Divorce Handbook for California (Impact Publishers, 2002): Realistically, you cannot gain a significant advantage in litigation by hiring a more skillful attorney. Judge Stewart adds, Put aside the notion that your attorney is a great courthouse advocate whose skill and ability will hypnotize the judge. Your case is not going to trial before a judge — short of a miracle; if it does, it will be a financial catastrophe for you.

When divorcing couples pursue court litigation, 90 percent of cases end in a negotiated settlement, often just days or hours before the case is scheduled for trial. This decision to settle pretrial usually coincides with the parties realization that most of the issues that they have been contesting — for example, the amount of child support and the division of property — will be set by a judge according to a predetermined formula. If these same parties would have settled through mediation, they would have saved tens of thousands of dollars.

People choose divorce mediation over the process of divorce litigation in court for many reasons. Some have been told that court litigated divorce takes a long time, creates hard feelings between the spouses, creates anxiety in the children, and is not conducive to a settlement that makes either party happy.

Mediation proceeds at your own pace. The parties can decide when they wish to meet for the next session. They can schedule mediation sessions to suit their own schedules.

Spouses are more likely to stand by the terms of a mediated settlement such as abiding by co-parenting schedules and making timely support payments. Research suggests that people feel less resentment toward a settlement when they have participated in making the settlement as they do.

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