In mediation, couples work with a neutral third-party professional to resolve their disputes. Mediation can take many different forms, from a community mediator working as a volunteer to help with disputes in a neighborhood, to international and civil dispute mediations such as in the Northern Ireland Conflict. Just as there are many uses for mediation, there are many different styles of mediation and varied skills of mediators.
The Divorce Mediator
In a divorce process, typically, a couple agree to work with a neutral lawyer mediator. While there is no requirement that the mediator be a lawyer, it is strongly recommended because the process is a legal one, which requires legal knowledge to address specific questions that must be resolved.
The lawyer mediator does not represent either spouse; he is neutral to both. This means she cannot give either spouse legal advice. The lawyer mediator can explain, in general terms, what the law says, but cannot counsel either spouse on strategy, how to apply the law, or even what she should offer or accept as a resolution. The mediator is also not a judge or arbitrator who will decide the case for the parties after presentation of evidence.
The lawyer mediator, when instructed by both spouses, in writing, after full disclosure of the possible conflicts, may also prepare all of the necessary legal documents for both spouses (Evid. Code section 1129).
There are also financial professionals and therapists who act as mediators in the divorce process. They often hold divorce-specific designations such as Certified Divorce Financial Analyst or Divorce Coach. Regardless of their training, designation, and experience in divorce cases, they are not lawyers. They should not give legal information and they should definitely not prepare legal documents. Such mediators can prepare a couple for, or during, the transition, emotionally, and in terms of communication, help them gather and understand the financial information, and explore parenting plans that are practical and productive for the family.
Starting a Divorce Mediation
Mediation can be started at any time in the divorce process, including before the filing of the divorce, during a contested process, and even after a divorce when changes to the existing orders are requested. Some couples work with a therapist first, to prepare, emotionally, for the transition. This is especially useful when one partner is ready to divorce and the other is still in denial that the relationship is over.
Beginning with divorce mediation
Most couples begin with a lawyer or financial mediator in the hopes they can power through, or ignore, the emotional trauma that they or their spouse are experiencing. When emotions are fairly calm, communication not too strained, and trust is not too broken, this can be a good way to start.
Some couples start with mediation before filing for divorce. This can be done through private mediators (not through the court program). You can employ a private mediator at any time in your divorce process, and they tend to be more readily available than mediators through the courts, who are available only during court hours.
In some cases, the court will order a couple to “voluntary” mediation. This typically happens once the case is ready for trial—towards the end. Most courts do not have an early mediation program and this may be your first opportunity, through the court, to resolve your divorce with a neutral third party.
Mediation Participation Agreement
A mediation formally begins when you sign a mediation participation agreement. Both the courts and private mediators typically have a version of this agreement that summarizes the rules of confidentiality, the role of the mediator, the terms of the process itself, and/or management of any documents, notes, and information that is collected.
Court Mediation vs Private Mediation
Court mediation is usually free, low cost, or based on a sliding scale and consists of meeting with a volunteer lawyer, a social worker, or a retired judge, appointed by the court or who happens to be on the schedule that day. Some courts limit the mediation to one hour, and some give you the entire day and the opportunity to continue working with that mediator, albeit at her private or discounted hourly rate. With court mediation, it is important to know if the court is a reporting or non-reporting county.
Not every court has a mediation program, and not every court has a successful mediation program. In fact, for many courts, resolving 60 pecent of the cases through their mediation program is deemed a “success.” As a result, many people view mediation as a necessary step to getting in front of a judge and, therefore, do not prepare or take serious advantage of the opportunity to resolve.
Court Required Mediation
In the state of California, absent an extreme situation (danger to the child, for example), before a couple can see a judge for orders related to any child issues, couples are required to attend mediation first, often called “conciliation court” or “family court services.” The discussion is limited exclusively to child issues; questions related to spousal support, division of bank accounts, what to do with the house are not addressed.
Court Mediation Process
Mediators in the court programs are often under time restrictions, so they tend to be more directive in trying to get a case settled. They often have no prior knowledge about the case or are given basic financial information, the court docket, mediation briefs, and a copy of any prior orders on the day they meet with the couple. There is typically no preparation by or with the couple beyond a brief explanation from the court or their lawyers about the process.
If the case is settled, the parties’ lawyers, if any, draft the judgment documents and file them with the court. The judgment, once signed by the judge, becomes the orders and is mailed to the parties. In Riverside County, the mediator is given prepared judgment documents with blank spaces to add the agreements. The parties have the option of signing the agreements at that time and having the judge sign that same day: they are done with their divorce and walk away with a copy of the judgment.
Private mediation process
In a private mediation, you select the mediator and any other professionals you think may be helpful (financial and/or therapist) – you create the process. You are also not limited as to time or topics discussed. Your process, to completion, may take several hours, sessions, months, or even years. While different mediators have different protocols to help couples prepare and make progress, ultimately, progress is controlled by the couple. A private mediator will also require payment, either flat fee or hourly. Private mediators know the facts of the case, the personalities and communication styles of each spouse, and each spouse’s personal, family, and financial goals and concerns.
The luxury of being able to select your own mediator does give couples the ability to select a family law mediator with the specific knowledge and experience in the unique aspects of the family or property interests, such as complex business structures, high level investments, same gender couples, or special needs children. Private mediation also affords couples with the highest level of privacy and confidentiality—there is “reporting” vs “non-reporting” issue.
There are many different styles of mediation. Generally:
- Directive (most commonly used in court programs) mediation is more of an assessment of the case upon which a mediator recommends a solution, usually based on what a judge may order;
- Facilitative mediation requires a mediator to learn about each partner’s values, goals, and concerns so s/he can help them create their own customized solutions;
- Evaluative mediation requires couples to present enough accurate information for a mediator to determine what a judge would most likely order; and
- Transformative mediation gives couples the opportunity to learn new communication and problem-solving skills while working on solutions to the legal and financial questions.
Many mediators use each of these styles at different times during the mediation. Many also favor one style over others. Each style has its benefits and risks, and not every style will be a good fit for every case or party.
Divorce Mediation vs Other Attorney-Assisted Dispute Resolution Processes
Collaborative Divorce tends to be more structured than mediation. Some mediators will walk in the room and start the mediation with “So, what can we agree on?”, while others will send out reading material and worksheets so that the couple can prepare for the process. In a mediation, while each spouse’s individual attorneys may be welcome to attend (some mediators don’t allow this), most often it is just the spouses working with the mediator directly. In a collaborative process, the spouses’ individual lawyers are more directly involved in the discussions.
Attorney negotiations tend to involve the attorneys much more than in mediation. Spouses tend to talk primarily through their attorneys in this process, whereas, in a mediation, the spouses talk directly to each other, with the mediator present, or directly with the mediator who moves back and forth between the spouses in separate rooms.
Arbitration is a process where the parties, with their attorneys if they wish, present evidence to a neutral third party, or panel of neutrals, who then present their decision. The arbitrator’s decisions can be binding or non-binding.
Mediation tends to be a more financially efficient process than other attorney-assisted processes, if it’s the right fit. See When is Mediation The Right Option.
As with any process, making a decision based on emotions, cost, or because you think you can take advantage of the other person will often end up costing you more in the long run, be it in money, time, or any required future relationship such as co-parenting. If you are not sure if mediation is the right process for you, call our office and ask for an “orientation” to learn about the legal requirements for a divorce and the details of each process option. You can also attend a Divorce Options program and meet the professionals working in the financial, family, and legal aspects of divorce.
About the author
Diana L. Martinez has received “Super Lawyer” designation each year since 2016, is a Eureka Award recipient and is a faculty trainer with the International Academy of Professionals. She is an experienced collaborative divorce lawyer handling cases throughout California, with offices in Corona, Riverside, Newport Beach and San Diego.