Most people who are getting a divorce consider mediation as an alternative to “going to court.”
Divorce Mediation promises to be less expensive than family law attorneys arguing endlessly about the Family Code, and it promises a fair result. Those promises are not always fulfilled. Before getting into that, let’s make sure we are both talking about the same thing - mediation comes in several varieties.
First is court-sponsored mediation. This only happens if you’re already going to court because one party has filed an “Order to Show Cause” why a child custody order in that party’s favor should be made by the judge. (An Order to Show Cause asks the judge to order somebody to do something.
Ordering somebody to do something is called “equity.” A motion asks the judge to make an order resolving a legal issue. That’s called “law.” Divorce courts are courts of equity, so we talk about Orders to Show Cause instead of motions.)
Before a judge can hold a hearing on a child custody Order to Show Cause, the parties have to go to Family Court Services mediation. If they don’t reach agreement at the mediation, the mediator makes a recommendation to the judge, and the judge usually follows it. This is not what most people think of when they talk about divorce mediation, but if you have children you should know it’s there - and it’s free. Lawyers can’t participate in Family Court Services mediations.
Second is a mediation by a court appointed Special Master who is also appointed to be a mediator. Special Masters are usually lawyers who are family law specialists. They are appointed with the agreement of both parties to resolve disputes over issues like property division and how much income one of the parties has available to pay support to the other. The parties pay the Special master’s fees. Special Masters collect information from the parties (directly or through their lawyers if they have lawyers), analyze it, and decide how they would resolve the dispute.
If the parties agree with the Special Master, that’s the end of it. If they don’t, the parties try to find a mutually agreeable resolution through mediation with the Special Master. Lawyers are welcome. If that doesn’t work either, the Special Master gives his decision to the judge, who usually adopts it. This looks comparable to what a Family Court services mediator does, and it is. Again it is not what most people think of when they think of mediation, and the outcome can be quite unfavorable to a party without a lawyer.
Third is the kind of mediation most people think of. The parties choose a private mediator, usually a family law lawyer with considerable experience in “going to court.” Most charge by the hour. The mediator does not represent either party. He or she is instead neutral, and the retention agreement should say explicitly that if the mediation fails, the mediator cannot and will not represent either party. Lawyers are seldom present during mediation sessions.
The mediation process typically begins with a meeting or several meetings with both parties and the mediator. Ground rules are the first subject. The parties must agree in writing that nothing they say during the mediation can be used in court if the mediation fails. They must also understand that they cannot call the mediator as a witness to testify about the mediation. Mediation sessions must be conducted with mutual respect. No talking over each other, no shouting, and no nastiness.
The next subject is basic divorce law, to help the parties understand their rights and obligations. At the same time, the mediator should insist that the parties exchange all material facts and information about their income, assets, and debts. If there are minor children, the mediator will also want to know a good deal about them.
The initial substantive work will be defining the issues and helping each of the parties formulate a proposal to resolve them. Once that stage is reached, which may take considerable time and patience on everyone’s part over many sessions, the hard work of reaching agreement can truly begin. It is wise to start with the least contentious issues so that the parties can experience what it takes to find common ground. On some points one party may be clearly right and the other clearly wrong, clearly right meaning what a judge would almost certainly do if a judge were ruling on the issue.
Here we come to a divide with some mediators on one side and some on the other. We’ll call one camp active and the other passive. The active mediator feels obliged to tell the parties what the mediator thinks a judge would do to resolve contentious issues, and to raise issues that are legally important but to the parties may be totally unknown and unsuspected.. In other words, the active mediator tries to influence the parties to reach a resolution that conforms to the mediator’s understanding of the law.
The passive mediator feels obliged to assist the parties in reaching their own agreement, even if it is legally questionable in some respects. For the passive mediator the fairness of the agreement lies in the fact that the parties have reached the agreement, and it’s their agreement. This approach, which is much more consistent with the way mediation was supposed to work in its infancy, feels good but has practical drawbacks. The more aggressive spouse tends to have the advantage, and the other spouse may later discover that he or she has made a terribly bad deal.
If an agreement is reached, the mediator typically documents it with a corresponding “Marital Settlement Agreement,” and prepares the forms need to process the divorce with the court. The Marital Settlement Agreement will be attached to the judgment form and constitute the judgment.
We prefer mediators in the active camp. We advise our clients who want mediation not to begin until we have provided them with a crash course in family law and assisted them in preparing their own proposal for settlement. If they know what they deserve and what they want beforehand, the mediation should go faster and be resolved more to their liking than otherwise. We also advise our clients to meet with us frequently during the mediation for guidance. Our input may make a major difference in our client’s favor. We certainly intend it do so.
San Diego Divorce Attorney Stanley D. Prowse is a California Certified Family Law Specialist. We welcome your legal inquiries.