Advantages of Mediation
Divorce or legal separation can be one of the most difficult and traumatic life experiences. This is particularly true when divorce is an adversarial, court driven process. Mediation—a valuable alternative to litigation—is non adversarial. It is client driven, private, confidential, and less expensive than other forms of resolution. Instead of the court making major life decisions about the future of the parties and their children, mediation offers a neutral third-party, the mediator, to help guide the parties through the uncontested divorce to make their own decisions in reaching a fair and equitable resolution.
Role of a Mediator
A certified mediator is a neutral, unbiased professional who assists divorcing spouses reach a fair and equitable agreement based on their unique personal circumstances. To maximize the quality of time with the mediator and minimize the expense of the mediation process the mediator will require the parties’ cooperation and full disclosure. During the mediation process the mediator is not acting as an attorney and is not representing either or both spouses. Nor does the mediator impose any decision upon them. When the parties reach full agreement on the terms and conditions of all the relevant issues the mediator will prepare a marital settlement agreement.
Role of the Parties
Mediation is most effective when both parties to the divorce voluntarily decide to resolve issues within the marital estate to work out the terms and conditions under which they choose to be divorced. Because mediation is voluntary either spouse may choose to end the mediation process at any time. Full disclosure of the parties’ financial worth and assets is essential. While professionals—accountants, appraisers, independent legal counsel, or others—may be used as advisors, each spouse must accept full responsibility for the reasonable accuracy of the value of their assets. All marital property issues and other marital issues raised during the mediation process are confidential. Hence, the parties must agree not to disclose what is said against the other in any pending or subsequent litigation, except as required by law.
The Mediation Process
The uncontested divorce is a two-step process: 1.Participate in mediation; 2. Finalize in court. Under no-fault divorce observed in California the court only requires the spouse who files the petition to state the divorce is based on irreconcilable differences. Thus, only relevant issues are resolved. Grounds that blame the other spouse for the breakdown of the marriage are no longer at issue.
Generally, there are about 20 to 25 issues that require resolution. Because the courts are not directly involved the parties have the right to decide how they want to divide the marital estate assuming the distribution is fair, equitable and consistent with California community property law. If there are minor or dependent children both the physical and legal custody of the child should be determined based upon the best interests of the child. California statutes, however, govern the amount of child support each parent is required by law to pay.
After each issue has been agreed to and/or resolved, the mediator drafts a marital settlement agreement. The parties are encouraged to have separate independent counsel review the agreement although such review is not mandatory.
Litigation vs. Mediation
When spouses seeking dissolution of their marriage refuse to agree or compromise on material property issues, child custody or support, or even matters of lesser weight and importance they are faced with a battle in the Family Law Court. Unlike mediation where the process is self-determinative, the judge makes decisions for people who cannot make decisions for themselves. The court process is guided by law. Whereas the mediation process is guided by the mediator helping the parties make sound, fair decisions. Contested court hearings can cost each spouse many tens of thousands of dollars in attorneys’ fees, involve extensive discovery through interrogatories and requests for production of documents and be drawn out over many months and sometimes years. Those seeking dissolution of marriage who can make decisions for themselves, therefore, would be wise to decide to use the mediation process a with a certified mediator.
By: Georgianna Pennington Regnier, Certified Divorce Mediator
Contact Our Office
Attorney Georgianna Pennington Regnier lends her mediation skills to clients who are divorcing and want to avoid the trauma and expense of having divorce litigated in the courtroom. If you wish to meet with Georgianna, please contact our office at (805) 764-6370.