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Mediation and Litigation

California Law Supports Confidential Divorce Mediation

Posted on in Mediation

Los Gatos divorce mediation lawyerFew couples can accomplish a divorce settlement entirely on their own, for three main reasons: 

  1. By the time a couple reaches the point of divorce, relations may already be strained to the breaking point. 
  2. While in this state of stress, a couple must work through a long list of issues in order to separate everything they currently share. 
  3. These issues include complicated legal and financial matters, such as child custody and support, joint bank accounts, individual retirement accounts, real estate, and other shared assets like cars and furniture. 

The California legal system offers several solutions to this divorce dilemma, one of the most popular being private divorce mediation, a process facilitated by an attorney who is well-versed in both divorce law and mediation techniques

California Courts Encourage Divorce Mediation

The California legal system supports mediation through specific laws as well as family court procedures and recommendations. For example, the California Courts website promotes mediation by explaining that “a judge can never know about your relationship—as a couple and as a family—as well as you know yourselves. So it makes sense to work out as many issues as you can out of court.” Mediation allows the spouses to retain control of their divorce process and decisions rather than yielding that power to a judge.

California Laws Support Confidentiality of Divorce Mediation

The California legislature has passed several laws that support the process of divorce mediation. One such law, which took effect in 1998, created a specific chapter on mediation (sections 1115 to 1128) within the California Evidence Code. This statute defines specific rules of confidentiality for the mediation process, so that everyone involved can speak frankly without fear of their statements later being used against them. 

One important clause mandates the confidentiality of everything said or written during mediation: “All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.” In addition, statements and documents from a mediation cannot be later introduced as evidence in any civil court proceedings or litigation, and a court cannot compel their disclosure, unless all parties to the mediation agree to the disclosure. 

Even the terms of the final marital settlement agreement (MSA) can remain confidential, as the final divorce filing can simply include a memo stating that the parties reached a settlement agreement and are keeping the terms of the agreement private. 

This law was amended, effective September 2018, to help ensure that mediation participants understand these rules of confidentiality. Attorneys are now required to have their clients sign a form acknowledging that they have read and understand the confidentiality requirements.

Consult a Los Gatos Divorce Lawyer Experienced in Mediation

Mediation can be especially helpful for divorcing couples who will remain in long-term contact due to children, shared social groups, or other ties. A mediated divorce tends to be less vindictive than a litigated divorce, and research has shown that divorced spouses are more likely to stand by the terms of a mediated settlement.

A skillful Los Gatos, CA divorce mediation attorney can help you and your spouse reach agreement on even the most difficult issues, such as where you will live and the best way to care for your children. Attorney Benita Ventresca has helped many families through the process of divorce mediation. Call the Law Offices of Benita Ventresca at 408-395-8822 to arrange your free initial consultation.

Sources:

https://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=EVID&division=9.&title=&part=&chapter=&article=

http://www.courts.ca.gov/1226.htm

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