Understanding Divorce Mediation
It is an unfortunate truth: People facing divorce are often in their lowest life period and with that, find they are at their worst. It is often bad timing to be in such a state because divorce involves many angles of emotional turmoil and complexity, including child custody, support payments, restraining orders, and the division of assets and debts. During these times, you require guidance not only from your attorney and could benefit from a skilled mediator.
Divorce mediation can make the separation process smoother. Unlike the tension created by litigation, mediation helps parties come to mutual agreements. It is often reported as an empowering process where parties can express their opinions and feelings while the mediator helps them understand different perspectives. The divorce mediator remains a neutral party who facilitates discussion and helps come to an agreement. Having this assistance often encourages better problem solving that helps people get beyond the complex emotional dynamics.
General Divorce Mediation Considerations in California
Divorce mediation is informal. Parties may be represented by attorneys or come to the conclusion they need mediation on their own. In that latter case, normally a couple decides to mediate a divorce and will meet with a mediator together.
Depending on the depth and complexity of the issues, mediation can resolve disagreements in one meeting or require several. The length of time for a mediation session will also vary. People with no children and only a few disputes can solve their disagreements within a couple of hours. When there are many issues, there can be a one-day session followed by several smaller ones. Agreement is not guaranteed but in the least, divorce mediation can facilitate agreement on some issues so a court process is shorter and less stressful.
California Divorce Mediator
What Is a Divorce Mediator?
A mediator is an impartial third party who can assist the divorcing spouses in resolving their differences. It is important to note a mediator is not the same thing as an arbitrator. An arbitrator is a a private judge who conducts abbreviated litigation and issues a decision binding on both sides. A mediator, in contrast, can only advise the parties on how to settle their issues. The mediator has no authority to impose a solution or mandate any particular resolution.
What Will the Divorce Mediator Do?
Every mediator has his or her own style. But generally speaking, a mediator will gather information about the parties’ situation, attempt to frame questions for discussion, and then conduct negotiations between the parties. If mediation is successful, the parties may reach a preliminary agreement. At this point an attorney (who may also be the mediator) can be brought into turn the parties’ agreement into a binding legal contract that can be submitted to a judge for incorporation into a final divorce decree.
Of course, mediation is not always successful. If the parties are unable to resolve their disagreements amicably, litigation may still be necessary. And there are cases, such as those involving allegations of domestic abuse, where mediation is simply inappropriate.
But in most cases, mediation can help the parties achieve a quicker resolution than litigation. More importantly, mediation allows the parties to keep their divorce relatively private, as a full-blown court battle may become a matter of public record. Especially if there are children involved, mediation provides couples with a more dignified and confidential way to end their marriage with minimal fuss.
How Divorce Mediation Works
To prepare for divorce mediation, you need to disclose all debts and assets. If spousal support is an issue, also come prepared with information about your income and expenses. You need to be ready for discussion rather than a hard view of your perception. If you have an idea of optimal child visitation plans or how you would like property divided, be ready to discuss those in further detail.
Mediation begins with a discussion with each party. This is often a private telephone conference with each party so the mediator can collect background on the situation and the main concerns. Sometimes, this discussion happens with each party at the mediation meeting itself. Issues discussed at mediation must remain confidential and nothing can be disclosed unless there is a court proceeding.
At the mediation, parties will either be in separate rooms or one room—again depending on the current dynamics. If the parties opt for separate rooms, the mediator will speak with each separately and act as an intermediary when communicating with the other party. This is often very effective in relationships where there is a lot of resentment and it takes skill to cut through to the issues. It allows the mediator to explain the issue to the other party without the connotations that accompany strong emotions.
If the parties share a room, there are ground rules about interrupting one another and allowing time to speak—and let the mediator facilitate the discussion as well. Sometimes, this proves ineffective and the mediator may require the parties to move to separate rooms in order to keep the process productive.
How You Can Make Mediation Work
You will need to be in the right mindset to make this process work. If you choose divorce mediation, you will need to be:
- Willing to compromise
- Ready to listen and understand other points of view
- Open about debts and assets
- Prepared for this to take as much time as it needs
Being able to understand another position does not mean that you agree with it. No one really comes out of a divorce with everything they want and that is likely to be the case with you as well. This is not a good time to stubbornly hold on to ideals unless they are essential to making a living or raising your children. Know where you can compromise as well as where you must stand firm.
It also bears mentioning that there are scenarios where mediation is not appropriate. Marriages that involved physical or mental abuse, substance addiction, criminal activity or sexual abuse are not good candidates for mediation. The unhealthy power dynamics involved in these situations make a mutually beneficial agreement impossible. If you do not feel comfortable pursuing mediation with your spouse, do not feel pressured to take that course of action. You must enter this process willingly and if you feel safer taking the litigation route, do it.
Importance Of A Good Family Court Services Mediation
In California, when there is a dispute regarding custody or visitation the parties must attend Family Court Services mediation prior to their court hearing. If the county is a recommending county, such as San Diego, and the parties do not reach an agreement the Family Court Services mediator, or counselor as they are now called, will make a written recommendation to the court as to what the custody and visitation should be. The judge will read this recommendation prior to the hearing and has the option of adopting it, modifying it or not following it all. For this reason, Family Court Services mediation should be taken very seriously.
Family Court Services Mediation
For the most part, Family Court Services mediation is not in a sense what people think a mediation is. People have the impression that you are mediating just like you would if you hired a private mediator. In private mediation what is said is generally confidential and cannot later be brought in as evidence in court. This is not the case here where the mediator may write what the parties said. In fact, the mediator generally will either summarize what is said or will quote directly what the parties state. The mediator also has the ability to contact third parties such as therapists, teachers, principals, psychologists, physicians and child protective services and if these third parties are involved or have input necessary for the recommendation, there is a strong possibility they will be contacted and what they say will play a role in the recommendation. For example, if a party states a child is having problems at the school there is a good chance that the child’s teacher, principal or counselor may be contacted. If Child Protective Services is involved, they will surely be contacted. Therefore, it is important to be accurate in what you state and raise as to issues.
First Impressions Matter
It is important to be prepared because if you are not it could be detrimental to you and the recommendation you receive. I always think first impressions are important and I think it is the same here. Therefore, you should be on-time, look presentable and be respectful to the other party and the mediator. If you look like you drink 8 beers or a bottle of wine the night before and got in at 2 am, are constantly interrupting the mediator and the other party or seem hostile, it likely will affect the recommendation. It is also important that you only discuss issues dealing with custody and visitation. The mediator does not want to hear about financial or support issues since that is not their area to deal with. Those issues are for the judge to decide. Also, you should be prepared to discuss the child’s education, medical history, extra-curricular activities, etc. As such, it is important to know the teacher’s and physician’s names, the grades the child is receiving and activities the child is involved in. If your knowledge on these issues is limited it is tough to make a strong case for yourself to have custody or more visitation.
Having a custody and visitation plan that you can back up and raising all the issues is crucial. Obviously, if you do not have a plan the mediator will likely not give you a favorable recommendation but the plan should also be well reasoned and able to back up with facts. For example, if you request a mid week overnight visitation and the custodial parent lives in Carlsbad and you live and work in downtown San Diego you better be able to answer how you will get the child to school in Carlsbad at a reasonable time. Simply stating, “I’ll be able to” is probably not good enough. It is also important to raise all the issues in mediation so the mediator can make a recommendation regarding the issues. It is always frustrating for the judge to make a ruling on issues that were not raised at mediation. This sometimes can cause the judge either to send the parties back to mediation which causes delay or not rule on the issue at all.
There is an option to appear in person or by telephone for the mediation. I think one should appear telephonically only if it is absolutely impossible to appear in person. In fact, even if you live out-of-state, I think it is beneficial to make the trip to San Diego for mediation. Being face-to-face with mediator is more effective than via telephone.
Finally, if you reach an agreement, make sure that is what you want. There are many times where a judge gets the mediator report and it states that the parties reached an agreement. If that is the case, the mediator will simply state what the agreement is and not discuss the issues. Then the party meets comes to court and wants the judge not to adopt the agreement. The judge is put in a tough situation since there is no analysis of the issues by the mediator. In these cases, the judge will many times simply adopt the recommendation. Therefore, if you are going to agree make sure it is want you want.
If you’re considering going through a mediation process to help resolve your divorce settlement, then consider the following benefits:
- Mediation is always a lot less expensive than going through a series of hearings or a court trial.
- Almost every mediation process will end in a suitable settlement for both parties that addresses every issue.
- Mediation is always confidential, so there’s never a public record of what happens during these sessions.
- You and your spouse will be able to bring your own ideas to resolving your divorce settlement through a collaborative process, and you’ll ultimately be able to be straightforward with what you both think is fair instead of having legal principles imposed upon your solution.
- Your lawyer is always available to you during mediation and can help you with legal advice throughout the entirety of the process.
- You and your soon to be ex-spouse will be in control of the divorce process, not the court.
- Mediation helps couples improve their communication and can help later on in terms of avoiding future conflicts.
Of course the ending of any marriage is a very emotional and painful experience, so mediation doesn’t always work out as well as it should, and it’s simply not meant for everyone. But when you trust a divorce specialist like Mr. Fritsch to help you throughout your mediation process you’ll be putting your entire settlement, and peace of mind, in the proper hands.
Divorce mediation is a great way for many couples to resolve their issues, and here are some mediation tips to help you make the most out of your divorce settlement!
1. Pick the Perfect Mediator
All mediators are unique, and every mediator is going to better at certain aspects of divorce settlements than others. For instance, some mediators are great at handling complex financial agreements and others are better at handling emotional conflicts. Also, it’s important to understand that some mediators handle cases that involve domestic violence, while others don’t.
So when it comes down to it you should always be making a concerted effort with your spouse to make sure you are hiring a mediator that is more than qualified to handle any of the complexities that are involved with your divorce, because picking the wrong mediator can many times lead to a failed mediation simply because the mediator couldn’t successfully navigate the posed issues.
2. Be Prepared
You should always talk to your lawyer before you go into a mediation session, and this is because you’ll want to fully understand a whole array of information beforehand. You’re going to want to know all of your legal responsibilities and rights, your state’s child support laws, and you’ll want to have thoroughly gone over your financial documents beforehand as well.
Although some mediation experts recommend keeping lawyers out of the sessions, we think that you should always have an experienced professional by your side who has a career’s worth of understanding when it comes to negotiating your financial settlement.
3. Do Your Homework
An example of doing your divorce mediation homework is having your financial documents submitted to a mediator by their given dates, and this can include getting property appraised, obtaining pension information and understanding certain school districts so you can better understand where to move to so your kids can stay in the same school after the divorce finalizes.
You’ll never get anywhere with your mediation if you and your spouse aren’t doing the necessary tasks to move forward with the settlement, so make sure you’re keeping up with your to-do’s!
4. Have a Clear Understanding as to What You Want and Need Before Going into a Session
Your bottom line is something that you’re going to need to fully understand before you start any type of negotiating, so that means differentiating what you definitely need from a divorce settlement and what you want to have. You should know what you’re willing to give in on and 100% come to an understanding that your wants and needs don’t always coincide with one another.
If you can go into your mediation process knowing the answers to some of these fundamental questions, then you’ll have a much better chance of having more effective sessions.
5. Try to Understand What Your Spouse Needs and Wants
You are always going to know your spouse much better than a mediator, so you should think about what’s important to your spouse and also what your spouse wants and needs from the divorce settlement. You are always going to want to go into a mediation session looking for a win/win situation, so by knowing what your spouse wants you’ll be able to put yourself in a better position to trade for something else that you want.
6. Be Honest
It’s always smart to have a lawyer review your agreements before they are solidified, and if you feel uncomfortable about any issue during your sessions you should let the mediator know. You aren’t going to want to go back and forth on your agreements, because that could potentially just kill the mediation process altogether.
So be honest and don’t be afraid if you want to go through some aspects of your settlement a little longer before you close up shop.
7. Control Your Emotions
This is, of course, a lot easier said than done, and there’s no denying that facts that divorce mediation is pretty tough, especially when your spouse is pushing your buttons when you’re already on the edge! The best strategy towards handling your emotions properly during mediation sessions is to know exactly how you’re going to calm yourself down before the sessions even begin.
One of the best techniques to control your emotions when you are triggered is to remain quiet, breathe deeply and count to at least 5 before giving any kind of reaction. You should also be keeping the end game in the forefront of your mind and focus on the big picture at hand, which will ultimately help you put the little stuff aside.
And if you feel like you are getting too emotional during the sessions, then you should simply ask to take a break so you can clear your head.
8. Keep an Open Mind
It’s important for everyone going through a divorce mediation process to know that there is always more than one way to go about getting to your final settlement, so the more you think about your way the less likely you’ll get to a fair, finalized settlement.
A mediator is always going to help both you and your spouse go through resolving your issues in creative ways, and you’ll be surprised to know that there are more than likely several solutions you haven’t thought about just yet. But you have to be open-minded enough to explore your options, and not just think about getting the settlement accomplished to your liking.
Steven L. Fritsch, Esq. has successfully mediated many divorces and custody disputes. He has the knowledge and experience to mediate your issues and assist in working towards resolution. If you want to participate in mediation rather than litigating your issues in court, contact the Law Offices of Steven L. Fritsch to set up you mediation.