Mediation and other methods of alternative dispute resolution can be a very effective, efficient, and cost-conscious way to handle your divorce case.
Resolving your case through mediation can mean more money in your pocket and less to the attorneys, when compared with litigation. But is mediation right for you and your spouse? Whether it is the best option for you depends on the circumstances of your particular situation and how you are envisioning utilizing mediation in the process of resolving your case.
It is important to consider the personalities and emotional state of the people involved in your case (i.e., you and your spouse) and honestly assess whether you think you are each in an emotional place where you can cooperate with one another in the process and in reaching agreements with the help of a neutral party. If your spouse is not willing to cooperate or play fair, then mediation is likely not for you. Mediation can also be inappropriate in situations involving domestic violence, as the perpetrator-spouse may wield an unfair advantage over the abused spouse. The goal of mediation is to proceed with the process in a cooperative manner with the parties on relatively equal footing in terms of bargaining power. Spouses are not on an equal footing if there is a significant history of or ongoing domestic violence or the dynamic of the relationship is otherwise such that one spouse steamrolls over the other.
But where in the process will you implement mediation? Are you and your spouse intending to go to mediation without your own respective attorneys? If so, a few words of caution:
(1) Be careful who you select as a mediator. In California, mediation is an unregulated field. There is no special education, training, or certification required to label oneself a mediator in some jurisdictions. Some mediators are experienced attorneys, retired judges, etc. who are excellent choices to help mediate your case. Others are people who just went through a divorce once, have feelings about it, and hung a shingle as a “mediator”, for example, and may or may not be qualified to do this work. Do your research and/ or call your local bar association for a referral if need be.
(2). Get a consulting attorney. At minimum, if you are going to go to mediation without an attorney, I highly suggest you have your own independent attorney review any proposed settlement agreement before signing it. The mediator is there as a neutral party to get you to an agreement on the issues in dispute – not to give you legal advice about what is in your best interest. In fact, the mediator should provide education but not legal advice to either party because to do so would be a conflict of interest, as your interests and that of your spouse are in conflict. Some settlement agreements cannot be changed once they are signed. You should never assume they can be. You do not want to have buyer’s remorse. Many attorneys will offer a consulting service where they will review your settlement agreement and make suggestions for you to consider before finalizing it. Spend the money on this – it will be worth it in the long run and cost less than it would to later try and undo the agreement.
(3) Use mediation smartly in the process. How I often see mediation used most effectively is when both parties have attorneys, the case is prepared correctly, and only once necessary steps for the court have been completed and the gathering of information and documents each party needs to present his or her case has concluded, do the attorneys jointly select a mediator and spend a half or full day of mediation. If both parties are emotionally ready to be done and have settlement-minded, prepared attorneys, and a skilled mediator, most cases resolve with a day of mediation. When people go to mediation without attorneys, I have seen so many instances where the case languishes with no progress for protracted amounts of time. I cannot count how many consultations I have had with potential clients who have come to me with a story about being in mediation for the last x number of months or years with little to no substantive progress or basic steps to the divorce completed. This is such a disservice to the parties and can result in wasted time, frustration, and money left on the table. Don’t assume because you involve an attorney the case has to be ugly. That’s simply not true. An experienced family law attorney can be very useful in many ways and one of those is to keep the matter moving forward and keep you apprised of any legal harm you may suffer by letting mediation continue for too long without a resolution. Attorneys are also be useful to level the playing field between the parties in terms of bargaining power and may serve to make a case more appropriate to take to mediation than if the parties went without counsel.
In sum, mediation can be a preferable way to resolve your case when approached correctly. Mediation in some form is a preferable choice over letting a stranger in a black robe make important decisions for your family and your future in almost every case. Resolving your case by mutual agreement, through mediation or otherwise, allows you to retain control over the outcome. It may also be possible to resolve your case by agreement just by settlement discussions between the attorneys before going down the path of mediation. Talk to an attorney who is licensed in your jurisdiction about what the best approach may be in your case.