Perhaps you have heard of family law mediation but you are not sure what it is or how it works. The following is a brief description of the mediation process.
Mediation involves two parties sitting down with a neutral, experienced family law attorney, who is also trained mediator. Not all family law attorneys have mediation training, so it is important to find one who has both mediation training and experience.
Unlike litigation in court, mediation is a private and confidential process. The confidentiality component of mediation prevents the parties from testifying in court about what happened in mediation and/or from calling the mediator as a witness in any court proceeding. This makes mediation a safe place for parties to freely discuss all of their issues, without fear that what they say will be used against them in court.
The parties will sit down with their mediator and work to divide up their community property assets and debts and confirm separate property assets. If the parties have minor children, the mediator will help them work out a timeshare plan for themselves and their children. The parties will also work with the mediator to determine child support and spousal support (alimony), if any. This does not have to be a lengthy process, but like Rome, a mediation agreement to end a marriage is not built in one day.
As a first step, both parties will prepare the required asset, debt and financial disclosure documents. The parties will list all of their property, debts, income and investment opportunities. Failure to do so can result in severe penalties. The mediator can assist the parties in this requirement. This is far less expensive then having attorneys conduct formal discovery, such as depositions, interrogatories and demands for production of documents, since parties in mediation will voluntarily provide each other all documents needed for a full and fair disclosure of their property, debts, income and investment opportunities.
However, the mediator does not represent either party and the parties are free to consult with their own attorneys throughout the mediation process. Even where parties do not consult with their own attorneys throughout the mediation process, the mediator should encourage both parties to have their final Agreement/Judgment of Dissolution of Marriage reviewed by a consulting attorney before it is signed.
What happened if parties in mediation disagree about custody of the children? Instead of litigating in court, they can hire a neutral third party mental health expert—someone with experience in child custody issues—to assist them in resolving a custody dispute. Parties can also retain a neutral third party expert to help them value a business or personal property, such as antiques, art, jewelry and the like.
Because both parties usually split the cost of mediation, they both have a financial incentive to make the mediation process work. Mediation has been shown to be at least two-thirds less expensive than litigation. Parties who mediate never have to take time off from work to go to court, attend a deposition or work on answering volumes of discovery such as interrogatories. Unlike the rigid hours of court, mediation hours are flexible and the environment is non-threatening. You can dress casually and have coffee, water, juice or soft drink with you in mediation. If your cell phone goes off in mediation, you can answer it. If your cell phone goes off in the courtroom, the bailiff may take it away from you.
Sometimes parties in mediation will want to talk to the mediator privately. This is called a “caucus.” Anything said by a party in a “caucus” is confidential, unless that party permits the mediator to disclose the information to the other party. Sometimes a party needs to express feelings to a mediator that they currently are unable to express to the other party. Often a mediator can help them frame their feelings or more narrowly focus an issue, which can then more easily be presented to the other party.
If you and your spouse are serious about resolving your divorce issues, then mediation is the best path to take. You and your spouse will conserve financial resources, which is no small thing. Your divorce can be concluded quickly and efficiently because you will avoid the lengthy process of litigation. If you’re are still not convinced, ask anyone whose been through the family law litigation process.