Introduction
Before we delve into the art of mediation, we want you to know that we are huge proponents of alternative approaches to divorce. Natalie and I are grateful for the opportunity to work with clients who prefer to maintain control over their family law matters by exploring alternative resolution options. It is incredible what a difference it makes when parties decide to retain autonomy and control over the untangling of their relationship, rather than turning over their decision making authority to a third party, such as a judge. Our love for mediation and alternative methods of case resolution is top of mind, especially after completing Mosten Guthrie 40-Hour mediation training in February 2022. With this post, we want to share with you our growing passion for mediation and formally announce that we will be expanding our mediation services for family law cases.
Why is mediation an important option?
While individual county courts have implemented a variety of processes to encourage negotiation, settlement, and encourage not litigation resolutions, it can still feel impossible to achieve an amicable resolution when the court system is designed around conflict.
We are not faulting the court system. As an legal institution, it hasn’t had great opportunities to evolve because of sheer volume of people required to implement change. Our goal is to overcome these court limitations by providing alternative resolution approaches to divorce, especially by focusing on mediation.
What do all family law matters have in common?
All family law matters, regardless of facts and circumstances, will require the submission of paperwork to court and the opening of a court case. This is beyond anyone’s ability to control or change. What individuals do have control over is how the matter proceeds. There is the traditional path that we typically think of: with two opposing sides where the parties approach the conflict as enemies and see only two potential outcomes: win or lose.
With how litigious our society is, it makes sense that this is the standard perception when entering any court case; however, in family law cases there truly is no scenario where there can be a “winner” in the classic way we define that word.
Let’s look at a family law matter where there are two parties who have had a romantic relationship, or at least an intimate one, and that relationship has ended. There may be children, property, debts, or just the desire to cut the other person out of one’s life. More often than not there are also strong emotions from at least one person regarding the ending of the relationship and the conduct of the other party.
Regardless of the specific facts and circumstances, the real underlying question is: how can these individuals move forward with separate lives so that they can heal from any emotional pain, focus on providing loving homes and stability for their children (if they have them), and create the opportunity to cut ties with each other for the new chapters in their lives?
In our experience, when individuals approach their family law case with a “one of us will win and the other will lose” mentality, there is no ‘winning’ for either party. The focus is on inflicting so much pain on the other person—through frivolous motions and false allegations—that both parties often end up spending anywhere from $50,000-$150,000 on attorney fees or other professional fees. They also end up spending years in court without a resolution, dragging children through custody evaluations, schedule changes, and confusion about the changes in their family.
What is mediation in a family law or divorce case?
Mediation is a process where the parties are able to work together in a safe and guided manner so that they can reach a resolution on the issues present in their case on their own terms. There are a few different formats mediation may take.
Option 1: The parties hire a mediator to guide them through the legal process. Depending upon the qualifications and training of their mediator, that person may be able to prepare their legal documents, or may focus solely on facilitating discussions between the parties so that they can identify previously unknown options to amicably resolve their case.
It must be clear that a mediator is not and will not serve as an advocate for either side, but as a guide and referee. The mediator’s role is to help the parties identify their concerns, create ground rules and agendas, and guide the conversation forward so the parties can identify options for resolutions that will meet their goals and needs. The parties may, but do not have to, retain their own counsel to consult with on the side regarding their options and possible resolutions.
Option 2: The parties each formally retain separate counsel. The counsel still functions as advocates for each individual party; however, the parties also engage the services of a mediator or neutral to facilitate settlement discussions. This can be helpful when parties are not highly litigious but perhaps are holding unreasonable positions (in the sense that a judge would not entertain that request based upon current laws). The neutral is often useful in speaking to the parties and explaining from a neutral perspective what is likely to happen when their matter is brought before their judge and therefore creating movement in their position towards something in line with California law.
These are just two examples of mediation. There are other variations on mediation, but these both capture the basic idea: a neutral individual who is not advocating for the interest of either party, but instead focused on:
Identification of issue or conflict
Identification of interests and goals
Identification of options for resolutions
Formulation of ultimate settlement
Are divorce mediation agreements binding?
Yes! The final agreement becomes the marital settlement agreement that is attached to your judgment. Once the judgment is processed by the family court clerks and filed, it is a binding legal judgment. There are ways to request a modification later, or request a set aside, but those options are limited to specific issues and fact patterns and are beyond the purpose of today’s post; however, the ways to attack a mediated agreement or order are the same processes used to attack one reached following a trial. The mere fact that it is an agreement reached during mediation does not in and of itself make the agreement any less enforceable.
Is divorce mediation worth it?
There are cases where mediation is not appropriate: divorce with a diagnosed narcissist or where one or both parties have high-conflict personalities are two instances where mediation is likely not the best option.
We are careful to include the word “diagnosed narcissist” because it is extremely common these days for exes to label each other as “narcissistic.” Narcissism is a very specific medical diagnosis that requires an evaluation by a proper mental health professional.
Just because your ex is selfish or self-centered does not truly mean you are divorcing a narcissist. Not everyone casually labeled a narcissist is a narcissist. In fact, studies have shown that often those people throwing out allegations of narcissism are often the actual narcissist of the relationship, diverting attention from their own bad behavior.
We must be mindful with our words and not unnecessarily mis-labeling people–even in a difficult divorce. Divorces with a narcissistic party are extremely difficult and emotionally and mentally taxing; however, once you are out and through the other side of the tunnel, divorcing a narcissist is liberating.
Except in situations when mediation isn’t safe (including some cases of domestic violence), in our experience mediation is highly worth it even if parties are worried they are too far apart to be successful with mediation.
If you are considering mediation, make sure you take the approach that is best for you. For example, if you want to have a private attorney to make sure you understand your rights and to help guide you through advocating for yourself–do it. On the other hand, you may not feel the need for independent counsel. This option is also fine, so long as you always know you have the right to private counsel to consult with. In any circumstance, making sure you select a mediator that you both feel comfortable with is going to be the key.
One huge benefit of mediation is that you are not required to strictly follow the family code. Judges have very few options when a case is tried before them because their hands are tied by the limitations contained in the family code. When parties engage in mediation they have the gift of thinking bigger than the family code.
The parties have the unique opportunity to talk about supportive services including:
Therapy for either party, children, or the family
Co-parenting support & learning opportunities
Divorce Coaches
Collaborative experts
Alternative parenting plans
and other big picture items that heavily litigated matters often don’t discuss and which judges won’t generally order without an agreement
Parties are also able to think about alternative property division options which a judge may never be authorized to order.
The goal with mediation consists of the following:
• To accept where you are currently with the ending of the relationship
• To find a way forward honoring what once waswhile getting the hell out of dodge
• To move forward building the life you want after the relationship.
I strongly encourage any individuals who believe there is any potential to reach a settlement—and to avoid the necessity of going to court or paying lawyers to argue for you—to choose mediation.
Is divorce mediation cheaper? or Who pays for divorce mediation?
This is a great question.
The easiest way to think about the cost of a divorce is by breaking it down into time—attorneys charge for their time. There are some attorneys who provide flat rate fees; however, recent changes to the rules of professional conduct in California have tried to do away with flat fee agreements because of the potential for clients to pay more than the true value of time the attorney spent on that client’s case.
If you think about it in terms of time, if an attorney charges $350 per hour, and your matter takes 10 hours, it will cost $3,500 (not including court or other fees). Now, that is obviously simple math, but $3,500 alone can sound like a very large sum until you correlate the value of the invoice to what you are receiving: the attorney’s time & their years of experience and knowledge.
Unless there is a gross disparity in income between parties, or if there will be an unequal division of assets, both parties will share the cost evenly. If a case takes 20 hours, the total fee would be $7,000, or $3,500 for each party. Consider if you each retain your own counsel and proceed through the traditional family court path, you would each incur fees of $7,000.
When it comes to divorce, there is no denying that there is the potential for it to be extremely expensive. If you have a case that requires multiple trials on multiple issues, if you require experts for those trials to determine financial tracing, or custody evaluations, fees could easily reach in the hundreds of thousands of dollars. You’re not just looking at the fees for the attorney and their staff, but also court fees including court reporters, and potentially, the costs for experts to be involved, produce reports, and show up to testify at your trial.
Of course, if you are going through divorce mediation and have an extensive asset portfolio, you may still want to retain the services of an expert to complete an analysis. Think about the difference between sharing the cost of a mediator, sharing the cost of an expert, and not incurring the fees to prepare for and present a trial. It is important to recognize that overall legal fees are always in a range and have an idea of what your specific end range points are.
Gomez Edwards Law Group’s Mediation Philosophy
We recognize that, unlike navigating the court system which puts each family into a small box, mediation is an expansive process that can be tailored to the needs of the parties before us.
We see ourselves as facilitators. We want to make sure that each person who sits before us recognizes that we are like the bumpers on a bowling lane.
We cannot tell any parties:
• What agreement is right or wrong for their family.
• What they should or should not do.
We can:
• Support the creation of ground rules so that the parties before us can engage with each other in a way that they feel safe, seen, and heard.
• Ask questions to develop an understanding of the interests and values that ultimately form your positions.
• Support you in identifying what third, fourth, and fifth (or more) options you have so that an agreement can be reached that meets the needs of individual parties and their children.
As mediators, we are guides through a stressful and potentially confusing process. This helps both parties focus on the bigger picture of navigating the emotional component as well as the very real world practicalities of ending their relationship.
We place a great deal of emphasis on doing everything possible to limit the unnecessary trauma that can occur with family law matters. In fact, we have personally experienced how mediation can be a supportive and healing way for individuals to face divorce, work through it, and then move forward on the other side.
As mentioned before, we appreciate the freedom that comes with mediation and encouraging clients to think outside of the box and beyond the limitations of the family code.
Whether you feel that your circumstances would lend themselves to mediation or if you have questions about whether or not mediation is right for you we welcome the opportunity to speak with you about your case and answer your questions.
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