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Mediation and Litigation

When Is Divorce Mediation Required or Recommended in California?

Posted on in Mediation

Los Gatos divorce mediation attorneyIf you are unclear about the reasons for choosing divorce mediation over one-on-one negotiations or resolving issues in court (litigation), you are not alone. You might wonder if mediation is only appropriate for couples that still have a positive working relationship, or can it also work for couples who cannot seem to stop fighting? You may also wonder if it is a process you and your spouse can choose for yourselves, or is it something the court will order you to do?

Is Mediation Voluntary or Court Ordered in Santa Clara County?

The California courts generally prefer for divorcing couples to reach a settlement on their own. Couples are free to work out their settlement agreement through whatever process they prefer: on their own, through attorney-to-attorney negotiations, with the help of a family law mediator, or some combination of those methods.

However, the family court in each county may have its own local rules. In Santa Clara County, when parents cannot resolve a child custody or visitation dispute on their own, the court may order them to participate in mediation. A judge will typically settle such issues only as a last resort.

Is Divorce Mediation Appropriate for All Couples?

Mediation is generally not recommended when either or both spouses are too impaired to fully participate in the process. Impairment may be due to issues such as:

  • Domestic violence or intimidation
  • Alcohol or drug use disorders
  • Some types of mental or physical illness

In these types of situations, lawyer-to-lawyer negotiations can be a more effective way to reach a divorce settlement.

Aside from those few exceptions, mediation can be an effective way for almost any couple to reach a divorce settlement, whether relations are currently reasonably civil or extremely tense. By working with a skilled mediator over a series of sessions, a couple can actually learn useful skills that will help them work out personal differences both now and in the future. This can be especially valuable for couples with children, enabling them to co-parent more effectively following their divorce. 

How Does Mediation Work When Spouses Are Antagonistic?

Before beginning mediation, both parties should receive some kind of orientation to the process so that they understand what is expected of them. For example, they might be instructed to speak politely without swearing and to control their emotions “the way you would at work.” The Santa Clara County family court provides online videos that couples are required to watch prior to a mediation session. This helps get everyone in the right mindset for positive discussion and creative problem solving, something that can be difficult for a divorcing couple to do on their own. 

During a mediation session, the mediator helps keep the discussion on a productive track and helps the parties find points of agreement. The mediator also assists the parties in generating possible solutions and drafting the terms of their master settlement agreement.  

Do We Each Need Our Own Attorney in Addition to the Mediator?

At a minimum, each party to a divorce should retain their own attorney to review the final settlement agreement prior to finalizing it. This helps ensure that the agreement is fair and equitable to both parties. 

Many people prefer to retain their own attorney from the beginning so that they have the support of sound counsel throughout the mediation process. This can be particularly important when the division of assets is complicated or when there is significant disagreement about parenting decisions. Most mediators have no problem with each party bringing their own attorney to mediation sessions, as long as both spouses agree.

Consult a Los Gatos, CA Divorce Attorney

A skilled Los Gatos divorce mediation lawyer can help you reach an agreement with your spouse about the outstanding issues in your divorce, including the division of community property and decisions about child custody. Attorney Benita Ventresca has worked with many couples to help them reach a successful resolution to their divorce through mediation. Contact our office at 408-395-8822 to schedule your free initial consultation.

Sources:

http://www.scscourt.org/court_divisions/family/orientation/orientation1.shtml

http://www.scscourt.org/self_help/family/custody_visitation.shtml

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

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