When it comes to family law issues, not all family law matters have to be heard in a courtroom. The main reason why families end up appearing in front of a judge is disagreements. However, a good number of cases reach a final resolution outside of the courtroom through what is referred to as mediation. Mediation allows the parties to work out together and reach a legal agreement before the judge sees their case. This helps families to avoid spending hours in a courtroom, unnecessary delays, conflict, stress, and expense. In most cases, the meetings and agreements are made with the help of a trained professional.
While you’ll find some information about mediation through online research, the best way to understand this segment of the divorce process is by discussing your issues with a San Diego Family Law Attorney. Sometimes it takes the help of a third party to help parties communicate and distinguish what is important during moments of conflict. We pride ourselves on creating a safe space where our clients can be comfortable, open, truthful and honest. Set your family up for a happier, more peaceful future by calling us today at 619-610-7425.
What is Mediation?
Mediation is an alternative dispute resolution that entails a voluntary approach that lets two conflicting parties to achieve a common agreement on issues concerning their divorce including property division, support payments or family matters such as child custody, and visitation rights. Through mediation, parents can create a parenting plan that’s in line with the California custody laws and a plan that will be in the best interest of the child. Mediation strives at achieving an agreement that is focused on the welfare of everyone in the family. The discussions involve informal mediation sessions which are overseen by an individual who has gone through mediation training.
In family law cases, the mediation model gives the parties equal bargaining power and a chance to voice their needs, opinions, suggestions, and thoughts to help them solve their issues without the courts deciding for them. Mediation is carried out in a private, confidential setting, and while parties may still discuss their options with their family law attorneys, their attorneys cannot appear or represent them during negotiations. Mediation is not for everyone and if it fails, both parties have the option of going to court and having decisions made on their behalf by a judge.
Who is a Mediator?
A mediator is an individual who is neutral, does not represent either party and oversees the mediation process. The mediator strives to facilitate healthy discussion between the parties. He or she is forbidden from offering legal counsel to either party. If the mediation fails and the case goes to court, the mediator cannot be called into court during the proceedings and cannot be used as a witness on behalf of either party.
The main goal of a mediator is to help the two parties communicate in a cooperative manner. He or she must help the parties understand the thoughts, ideas, wants and needs of the opposition, and find strengths and points of disagreement in the cases. He or she must ensure that the parties are fully informed and aware of the dissolution process and the fact that they may not receive everything they want. The mediator may suggest amicable and reasonable resolutions that both parties can accept.
Before an individual becomes a mediator, he or she must go through specific training, which equips one with the knowledge that will help them create common goals for families who may be at odds with one another as well as come up with solutions that both parties can agree on.
Mediators can be individuals who are or once were professionals in the legal industry or the mental health industry. This means that attorneys can also be mediators for as long as they provide services that are neutral. However, parties have the option of hiring attorneys who don’t have any affiliations with the mediator to act as their personal lawyers. The advantage of finding a mediator who is a lawyer with comprehensive knowledge and experience in law is that you’ll get better guidance in creating an agreement that follows the law in California. If for instance, you want to ask specific legal questions, mediators with a legal background will be in a better position to give you an answer.
Why is Mediation Better than Litigation?
The benefits of mediation in family law cases in California include:
Amicable dispute resolution
Regardless of whether the arrangement involves child custody or divorce, mediation gives the two parties the freedom to discuss their differences openly, in a collected fashion. Since they have nothing to prove to anyone else in the room, the discontent can go by the wayside with the main focus being on the need to come to an agreement. With this, the sessions can be closed on better terms than what a courtroom can afford.
Control of the process
In cases involving litigation, the parties are obliged to follow orders given by the judge. Nonetheless, no judge decides what’s best for the family when the family matter is taken into a mediation room. This means that the two parties who engage in mediation have a say in their own agreements and maintain control of their circumstances. The parties have the power to resolve their conflict in a way that works better for them. Sessions usually end with agreeable terms and conditions tailored to their unique situation and therefore, they are more likely to understand their agreement than if a judge had made the decision for them. Parties who seek beneficial compromises are more likely to be happy with the outcome of mediation.
Better for the Kids
Divorce can be an incredibly emotional process for children witnessing the separation of their parents. Parents can make rash decisions due to pride, resentment, and feelings of friction that may negatively affect their children’s well-being. If you want to make decisions that are in the best interests of your children, working together can lessen the amount of time you’ll spend arguing and going to court. This helps ensure that the children are not involved in legal battles and do not appear in court. Given that the kids will not take part in mediation sessions, it makes it easier for parents to walk away with an agreement without involving their little ones. Also, children can rest comfortably knowing that their parents are not openly fighting for them.
Helps preserve family relationships
The mediation process forces two opposing parties to communicate properly and work towards a solution together. This can help build, repair or restore family relationships. When the parties get a fair and equitable agreement, there is nothing more to argue about and this makes it easy for the individuals to communicate effectively when necessary. This can be especially beneficial in cases where two people run a business together and cases where parents share a child.
Saves time and money
Mediation allows both parties to reach solutions that are mutually agreeable, unlike litigation which involves one party seeking to win over another. The cost difference between a divorce trial in the court and a mediated divorce is significant. It usually costs less to hire a mediator and consult with two attorneys than working with two, full-time attorneys. Divorce court is crowded and it can take years before the full judgment is declared. With mediation, the process moves as fast or slow as the two parties need it to and this means that a settlement can be reached in as little as 90 days. Mediation offers flexibility and the two parties can work on their schedules, rather than working around the court’s schedule.
How Does Mediation Work in San Diego?
Mediation is a legal process that a family may choose to go through before taking their case to court. In some cases, the court may order mediation before making a decision for the parties. The process of mediation usually starts with the mediator listening to each side of the story. This is done individually. After that, the mediator can meet with the two parties together. The first meeting usually involves the mediator helping the parties to create common goals. This may include goals such a dividing the debts, creating a parenting plan, deciding which parent will get sole custody during a change of residence, and even specific goals like deciding who gets to keep the pets.
The mediator will write those goals down in preparation for discussions and a mediation agreement. Both parties must approve that what is stated in the document is what they want to get from mediation. They will also sign the agreement and have a copy of it. It’s important to first take the copy to your attorney outside of mediation before you sign. Once parties settle on the mediation agreement, the mediator will help them identify their problems, come up with solutions, and find ways to resolve issues discussed in the mediation agreement. In this case, the mediator can meet with each party individually, or both parties together.
The process of mediation usually ends when an agreement is reached, or when both parties decide that an agreement is not going to be reached. Issues that remain unsolved can be brought to court. The mediator cannot appear in court or reveal any detail of the mediation. Whether a complete or partial agreement is reached, the mediator will help compile an agreement and give it to the parties. The parties’ attorneys outside of mediation will look over the agreement, sign it, and the mediator will submit it to the judge for approval. Even if mediation fails, at least you’ll have gained a better understanding of what the other person feels and wants.
Family Law Cases That Can Involve Mediation
Divorce mediation includes all family law issues such as legal separations, divorces, partner and spousal support cases, child support cases, child custody and visitation battles, property division, asset division, debt division, and more. However, mediation may not be applicable in cases involving restraining orders, protective orders, domestic violence, or abuse.
How to Prepare for Divorce Mediation
During the mediation process, a lot of decisions are made on some very tough issues and it’s imperative for you and your spouse to be prepared for the sessions. Here are some of the things you can do to assist the process and contribute to its success.
- Do your homework and choose the right mediator. Make sure that you retain a person that you feel comfortable opening up to them. In choosing a mediator, consider factors such as training in family mediation, certification, and experience in mediating family cases.
- Create a master list of your real property, vehicles, personal property, bank accounts, credit cards, life insurance policies, stocks, retirement accounts, self-employment profit and loss, paystubs, social security, mortgage payments, and all other important documents.
- Spend a considerable amount of time to determine everything you hope to get, what you can live without, and what you will not walk away without.
- If you have children, separate financial issues from parental issues and ensure your decisions are in the child’s best interest.
- Be prepared to negotiate and not to argue. You may not agree on everything but be prepared to listen to your spouse’s suggestions, wants, and opinions. Be respectful and be prepared to negotiate within reason and the scope of what is possible.
- Get a non-adversarial attorney to give legal advice and help you know your rights. If you feel that your attorney is more adversarial and steering you towards litigation, ask your mediator for a referral.
- Plan a budget. You’ll be in a better position to negotiate if you know how much you can afford to pay and how much you need. Be realistic and bring in fair and concrete expenses. You can ask your mediator for a family budget form or find one online.
Mediation is an exceptional alternative to resolving domestic disputes and family matters that have caused discontent in life. At San Diego Family Law Attorney, our experienced mediation lawyer will help you negotiate with your spouse without the stress and anxiety delivered by a courtroom. During the sessions, it will just be you, the other party and our mediation attorney. Our attorney has successfully worked with other clients through the mediation process. You can expect to receive a fair, friendly, skilled, and even-keeled approach that will help both parties achieve positive solutions. No matter what your family law case involves, we can help. To schedule a free initial consultation, call us today at 619-610-7425.