What is Mediation?
Mediation is a process designed to help parties resolve the particular issues of their divorce outside of court, so that they don’t have to put themselves through the high costs of litigation and what can be a very confusing family court system.
What is the Role of the Mediator?
The mediator’s main role is to help the parties evaluate their positions realistically, and to keep them talking and moving towards settlement.
Ideally, the mediator is a well-trained in conflict resolution, is experienced in family law, and has some sense of the tendencies of various family law judges within the several courts in San Diego. Because family law in California consists of many forms and statutory requirements, a mediator with experience in family law is essential in reaching a resolution. Even though the mediator will not be playing the role of attorney, and therefore will not be providing legal advice or advocacy, it is extremely helpful for the mediator to know family court procedure and forms to make sure an agreement gets correctly submitted to the courts.
Advantages of Mediation
Fashioning a Judgment Specific to Parties’ Needs
When parties submit their cases to a family court judge, they are essentially asking a stranger to make important and life-changing decisions about their family. Although family court judges do their best to make fair, equitable decisions and focus on the best interests of the children, they are still more limited in the relief they can give to the parties than if the parties made decisions on their own. Unfortunately, family court judges just do not have the time or resources to give each case the attention the parties may feel it deserves. Therefore, in handing a case over to a family court judge, the parties lose much of the influence they may have had over the outcome.
The beauty of mediation allows the parties to really define the needs of their divorce or their family, and fashion resolutions that will take those special needs into account. For example, a mediation agreement may provide “extras” not usually provided by court orders such as an agreement for college tuition or other post-high-school support.
Reducing Conflict for the Future
Mediation may diminish the conflict between the spouses during and after mediation, benefitting them and their children. This is particularly helpful for parents who end with a fairly equal parenting schedule, requiring respectful communication and co-parenting long after the divorce.
In addition, parties are also more likely to comply with agreements in which they have participated through mediation because they feel they have more ownership over the process.
Saving Money and Time
Mediation is less costly than the adversarial divorce procedures in court. Each time the parties have a dispute for the judge to decide, multiple hearings may be scheduled over a period of several months. These are hearings the parties’ attorneys must also prepare for and attend. The adversarial court process over time can be particularly damaging to the existing, and originally amicable, relationship between the parties.
Disadvantages to Mediation:
Where the economic issues are complex, or one spouse clearly dominates the other, the case may be better suited for the adversarial process of court than for mediation. In order for mediation to be efficiently productive, the parties must want a resolution of their case. If the parties are more interested in arguing, even a skilled mediator may not be able to get the case resolved.
Power imbalance between spouses
Disparities in the spouses’ education, abilities, and their psychological and emotional makeup often impact mediation. This is because mediation depends to some extent on the spouses’ ability to communicate their concerns. To the extent one spouse dominates the conversation, the other spouse may be at a disadvantage.
There may also be a power imbalance between the couple when it comes of valuation of assets, for example the value of a lot of land or a corporation. The party less familiar with the finances and particular assets of the marriage may be disadvantaged. This is true even when the parties agree on an expert to do the actual valuation. The expert’s valuation may be affected by whatever information is obtained from the spouse who is more familiar with the asset.
Mediation may be inappropriate where one spouse has a history of abusive behavior toward the other. The concern is that the mediator may urge reconciliation, putting the battered spouse at further risk. The mediator may not be able to identify when a batterer is emotionally manipulating and therefore frustrating the other spouse. This can be harmful for the emotional well being of the battered spouse, and the entire mediation process is hindered when one spouse can’t speak freely without fear of retaliation.
Drafting the Agreement
At each session the mediator makes detailed notes of agreements as they are reached. Some mediators will draft a settlement agreement. The mediator will recommend that the spouses take the agreement to an attorney to look over the final document before signing. Other mediators will simply prepare a “memorandum of understanding” for the parties to sign, and send this to the spouses’ independent counsel to draft a formal settlement agreement. Either way, once signed, the mediator sends the document to court for approval, and the matter is concluded.
If you and your spouse believe that mediation is the right path for your dissolution, call the experienced and caring attorneys from Cage & Miles, LLP to handle all of your concerns.