An In-Depth Look at Divorce Mediation

Separating from a partner can be hard and confusing. At this point in your research, you likely understand that there is more than one way to proceed with a divorce, including (but not limited to) litigation, meditation, and collaborative divorce. Deciding which path is best for your unique circumstances is a critical part of the divorce process, as no two cases are exactly alike; the path that works for another divorcing couple may not be appropriate for your particular case. How, then, should you go about choosing the best way forward for you?

Oftentimes, couples who are looking for a less stressful and less traumatic way to separate might consider divorce mediation. Divorce mediation is highly effective and increasingly the go-to choice for couples who are looking to divorce without involving the court and still maintain a civil relationship with their ex-spouse. The divorce mediation process offers couples increased privacy and ease that they may not necessarily find in the traditional, litigated divorce process.

Divorce mediation is an Alternative Dispute Resolution (ADR) process used by couples to confidentially resolve conflict outside of traditional family courts, with the goal of finding a mutually beneficial divorce agreement. Couples will hire and meet with a neutral, third-party mediator or group of mediators. These professionals will employ their training and the process of “co-mediation” to help couples agree on standard divorce terms, including (but not limited to): custody of any children, division of assets, and finally agreeing on binding terms. These processes can sometimes involve attorneys for both parties, but do not necessarily have to.

Mediation and litigation are both ways for couples to legally separate and divide marital assets, resolve custody disputes, and address issues of support for both children and spouses. But there is a significant difference between the two approaches. Mediation tends to be more tailor-made and less stressful emotionally than a traditional litigated divorce. Mediation involves a neutral third-party professional, or mediator, who will sit down with couples and help them work out agreements for their divorce terms. Litigation, on the other hand, typically involves lawyers for both parties and is driven by the court. The attorney’s support individual positions of each spouse and typically are not looking to find an agreement that is mutually-beneficial for both sides. If an agreement cannot be found, this can lead to in-court litigation, a process that can be especially traumatic and stressful for all parties involved.

When you file for divorce, you need to file a lawsuit to separate from your partner. Depending on your case, this lawsuit can be settled confidentially or via litigation in court, where a judge will make all decisions on the terms of your divorce.

While litigation and mediation accomplish the same goal of separating and dividing marital assets, their processes differ greatly. Mediation is often referred to as an “uncontested” or cooperative divorce. A “contested” or litigated divorce, on the other hand, often involves lawyers for both parties and is chosen if the divorcing spouses can’t reach an agreement on their own. In a litigated divorce, the judge will decide upon the agreement terms for the divorce. In contrast, mediators act as a neutral third party, working holistically to be family-focused or achieve mutual goals established by the parties. Mediation takes place outside of a court. Allowing parties to tailor a settlement agreement that is the best fit for them.

You also have a third option if both mediation and a contested divorce don’t seem to quite fit your case. Collaborative divorces are another type of Alternative Dispute Resolution (ADR) that are far more family-focused and tailor-made than traditional divorces that are decided in court via litigation. They avoid litigation, court costs, and cookie-cutter decisions made by a judge. These focus on putting children front and center—not in the middle. 

In a collaborative divorce, participants must sign a no-court agreement saying that they do not want to take this case before a judge. Both parties will also employ their own “team” of professionals. These teams play a supporting role in the negotiation process. Teams include a mental health specialist, an attorney for each party, a neutral financial expert and a child specialist (when children are involved.) These teams work together with clients to draft a “mission statement” for the divorce that both parties will agree upon. This purpose-driven mission statement will guide how the parties settle disputes and the path of the overall resolution. A collaborative divorce can be very helpful for couples with unique financial situations, young children, or a desire to keep their matter private.

Collaborative divorce differs from mediation particularly in that it does include each team advocating for their client. Mediation, again, involves a neutral, third-party mediator who is not advocating for any particular position besides a peaceful resolution for both parties. Collaborative divorces are more cost effective than a contested divorce.  Further there are experts working with each party related to mental health issues, property division and financial education.  Those who wish to have open lines of communications, possess a willingness to resolve things without litigation, and looking for solutions that bring value to all involved are great candidates for a collaborative divorce.

Once both parties agree to continue with divorce mediation, you’ll need to find a mediator. A divorce mediator is a neutral third party hired by both parties involved in the divorce. Mediators must be impartial and neutral in the proceedings. We recommend interviewing a few mediators until you both agree on one who seems like a good fit for your case. Mediators’ effectiveness depends on the willing participation of both parties; a mediator can not force anyone to participate or make a decision, that’s why you’ll need to collaborate to successfully move forward with mediation.

Mediators can often be mediator-attorneys, or attorneys that are trained in the mediation process. At Cage & Miles we only recommend working with mediator-attorneys. Divorce mediators help both parties clarify their needs, wants, and goals, and use the mediation process to help transform those insights into a cooperative dispute resolution that works for both parties. The process of mediation can resolve all issues pending for the parties such as child custody, support and asset division. Mediation takes place outside of a courtroom and is confidential. Only the orders entered with the court will become public record.

What does a mediator do in a divorce?

In a divorce-mediation, an attorney mediator will help facilitate productive communication between both parties, with an ultimate end-goal of reaching a settlement agreement to finalize the divorce and avoid court. Mediators will accomplish this by asking you and your spouse questions about your goals and communication, such as:

• Asking parties to clarify a point
• Asking questions to help keep communication consistent and clear
• Providing information about how the legal system works
• Describing how lawyers, judges, and courts may view an issue
• Referring you to third-party experts for resources and services

Because your mediator is a neutral third-party, their ultimate goal is to help you and your partner find common ground to bridge agreements. Because they are not a judge, they are not there to make decisions. This also means mediators do not listen to expert testimony in a case. Instead, they are attempting to facilitate an agreement between both parties through education, increasing the ability of the parties to communicate with one another and creative problem solving.

The physical process of mediation can look very unique depending on the case. Mediation can be done with parties in the same or separate rooms. When parties are in separate rooms, this is referred to as “shuttle mediation.” If parties are in the same room, it’s often referred to as facilitated mediation. This is when the mediator helps facilitate the parties speaking directly with each other to come to an agreement. In shuttle mediation the parties make proposals and give them to the mediator to be “shuttled” between the two rooms, where the other party can either accept or make a counter proposal. Mediation can take place with co-mediators and virtually.  It is possible to have parties around the world bridging communications and resolving issues.

When it comes to mediation vs. litigation, mediation has many advantages.

Mediation improves communication: Mediation is all about keeping the divorce process amicable and civil. Mediation not only helps preserve relationships, meaning there are still open lines of communication, but in some cases can actually improve communication. 

Mediation can be a very good choice for those with minor children.  It is crucial for children to not be placed in the divorce.  Through mediation, parents can learn tools for co-parenting and ongoing communications.  Studies show that in agreements reached by parties they are more likely to follow the agreement than those ordered by a court.

Mediation is more cost-effective: Mediation is often significantly cheaper than litigation. Because litigation takes a lot longer and is a far more involved process, you can quickly rack up attorney and filing fees. Mediation is also often a “community cost” shared by both parties, or the parties rely on community resources to pay for the expense.  With shared resources and efforts resolution is often more quickly reached.

Mediation is quicker: The mediation process can be completed in as few as three months. Compare this to litigation which can take 12-18 months, on average. This means you spend no time in court, and more time with your family.

Mediation is tailor-made: Instead of having a judge decide the terms of your divorce, you and your spouse will be able to make all the decisions about your split. Mediators work to create value for all involved in the process, which can help you have a better co-parenting relationship if minor children are involved or just make the recovery from your divorce easier and less traumatic.  By creatively working with the parties a Mediator can find a resolution that a court would not be able to reach, simply by looking to interests and assets to find a creative solution.

Mediation is confidential: One benefit of mediation is that it is an entirely confidential process. By keeping your divorce out of the courtroom, you can be assured that everything stays between you and your spouse. Only the final judgment and its attached documents will become public record at the end of your divorce.

Mediation still allows you to access legal advice: While many mediators are attorneys, mediators do not offer legal advice. However, you will still be able to hire your own consulting attorney in the mediation process. Consulting attorneys can advise you on the legal process when you decide to go through with mediation. It’s recommended that you go into the mediation process with a consulting attorney of your own, as a consulting attorney will help you navigate the complex family law issues and keep you informed so you can reasonably negotiate in your particular case.

Successful mediation depends on the degree of conflict or dynamics in your partnership. There are many cases when a divorce mediation is not a good decision, including if a spouse is hiding assets, forcing one to divorce under duress, threatening physical harm or abuse, unwilling to have necessary discussions about separation, or trying to minimize their legal costs. If any of these situations describes your case, you do have options, including litigation with some protections, like restraining orders.

Spouses who are hiding assets are not good candidates for mediation. When divorcing or legally separating, you will be required to fill out a Schedule of Assets and Debts; these are forms where you list all your assets and debts, both shared and separate. If you find push-back from your spouse over this or believe they are hiding assets, you will not have a successful mediation. In California, upon the filing of the Petition automatic temporary restraining orders (ATRO’s) go into effect. While “restraining order” may sound scary, these simply ensure mutual respect for financial assets going forward. It keeps parties from making any decisions about shared assets and minor children without the other’s consent or a court order. While ATROs should make a spouse play fair, some may still try to hide their assets, in which case you may need to employ a forensic accountant.

Divorces with an even higher degree of conflict, such as cases where domestic violence is present, are also situations when divorce mediation is not recommended. Oftentimes these cases require a Domestic Violence Temporary Restraining Order (DVTRO). Abuse doesn’t always necessitate physical violence. California has also expanded its Domestic Violence Prevention Act to also include “disturbing the peace.” There are also special considerations if you are divorcing an alcoholic. If you are experiencing domestic abuse, you have other divorce options.

The physical process of mediation can look very unique depending on the case. Mediation can be done with parties in the same or separate rooms. When parties are in separate rooms, this is referred to as “shuttle mediation.” If parties are in the same room, it’s often referred to as facilitated mediation. This is when the mediator helps facilitate the parties speaking directly with each other to come to an agreement. In shuttle mediation the parties make proposals and give them to the mediator to be “shuttled” between the two rooms, where the other party can either accept or make a counter proposal. Mediation can take place with co-mediators and virtually.  It is possible to have parties around the world bridging communications and resolving issues.

If you’ve decided that divorce mediation is the right choice for your case, you will need to begin to prepare for the process. First, you and your spouse will have to agree on a mediator. We recommend interviewing two or three attorney-mediators before settling on one.

After you’ve found a mediator you’d like to work with, you’ll need to compile financial information for both parties. This will likely include a Schedule of Assets and Debts that list both shared and separate retirement funds, real estate, vehicles, stocks, timeshares, credit cards, loans, and income.

Next, you’ll need to sit down and really consider your goals for mediation. What do you want from mediation? What do you need from mediation? Be prepared to defend your wants and needs with justifications; really consider the “why” in all your goals. Also keep in mind that in order to have a successful mediation, you may have to be open to resolutions that balance your wants with those of your spouse. If you have minor children, you’ll also need to consider what a child custody agreement looks like that supports the best interests of your children.

Now that you’ve found a mediator, you might be curious about what the mediation process looks like. How mediation works and what mediation looks like depends on what type of divorce-mediator you have. Typically, mediation takes about one to five sessions, each lasting a few hours. Each party can have their consulting attorney present. Mediators may use a facilitative approach, a shuttle approach, or something different like a transformative approach or evaluative approach to mediation. A transformative approach is begun with the intent to impact future relationships and ways of interacting. An evaluative approach to mediation is all about discussing your position and talking about its merits. Whatever approach you and your mediator take, open and clear communication is key to working out a settlement that won’t land you back in court six months later.

The mediator will discuss goals and concerns for both parties, including how they would like to split up community property. California is a community property state, meaning any property acquired during a marriage is considered to be owned equally by both spouses, regardless of who acquired it. You will also figure out if spousal support is necessary. Your mediator will help you come to an agreement on any concerns and issues, and will often start by tackling smaller issues so both parties can build trust. Ideally, the end goal is a full resolution of all issues. But don’t despair if you are unable to settle your entire matter, as you will still be able memorialize all agreements reached in a Judgment. Then only limited issues will be left for resolution in court.

For those with children, child custody and child support are important aspects of a divorce. Legal custody can cover everything from who gets to make decisions about a child’s education, religious practices and healthcare, or physical custody; to where the child lives after a divorce, also known as physical custody. Child custody mediation is an important process that helps parents learn more about the best interests of the children and come to agreements on how to share (or not share) legal and physical custody of their children. Custody mediation can help solve costly and time-consuming custody disputes without court.

In California, judges award custody on the standard of what's in the best interest of the child. This means the judge will take a holistic approach when deciding custody, considering factors like the child’s age, health, location, ties to family and friends, wishes, and the guardians’ histories of domestic abuse and substance abuse. When working out a custody agreement, always remember that custody is about the well-being of a child, not your personal preferences. While it’s not definitive, children do get some say in custody; courts can take their opinion into consideration if the child is mature enough.

Custody can shake out in many different ways. You can have joint or “shared” custody, both physical and legal, where both parents share decision-making as well as where the children reside. You can have sole custody, where one parent gets sole decision-making power and the child only lives with them. You can also end up with a mixture of these. In California, custody starts from the position of shared custody. In California, child support is set pursuant guideline, determined by looking at the earnings of each parent, the parenting plan and related deductions. The obligation for child support remains through a child reaching 18 or 19 and remaining a full-time High School student.

When there is a disagreement related to a parenting plan, custody mediation is court-ordered. A report is issued which provides recommendations. Once a custody agreement is reached there may be reasons for changes over time, a parenting plan will often change as your or your child’s life changes.

When you file your petition for divorce, you may be wondering how long your divorce will take. This all depends on what path your divorce ends up taking.

Litigated divorce, where your divorce ends up in court before a judge, is time consuming and costly. At a minimum it will take 12 to 18 months for your divorce to be finalized. Because this is time consuming, courts will often try to get parties to settle before going to litigation. This often takes the form of a mandatory settlement conference (MSC). An MSC is a final mandatory meeting intended as a diversion from the courts to give you a last chance to settle issues before litigation in court, usually overseen by a judge. But here you are dependent on court availability and local rules.

Mediation can be significantly quicker. Parties who work together can settle their divorce in as little as 90 days. More complex cases can take six months. Once you do come to an agreement, you will submit a marital settlement agreement. Your marital settlement agreement is a document that allows divorcing spouses to document their decisions for child support, spousal support, division of property, and child custody. Once that is submitted, a judgment for dissolution is entered. Your divorce judgment is a court order that finally ends your marriage.