Q & A: Divorce Mediation
How does mediation work?
During divorce mediation, you and your spouse sit down with the mediator in private and take turns explaining the problem as you see it and how you think the matter could be resolved. Most of the time before this meeting, both parties have submitted to the mediator their Preliminary Declarations of Disclosure, which is a complete listing of all known assets and debts as well as each parties’ monthly living expenses and monthly income.
The mediator allows you and your spouse each an opportunity to be heard, making sure the atmosphere remains one of cooperation and respect.Usually, a mediator lets you and your spouse discuss an issue, and then the mediator makes suggestions on how a compromise might or might not work.
What if we don’t get along well enough to sit in the same room?
No problem. Our Orange County divorce mediators at Hendrickson & Associates have conducted many mediations where the parties were quite antagonistic towards each another. There are many solutions to this problem. Often, we meet with one party at a time, and if the absent party wishes to take part or at least listen to the conversation, we have them call in and put them on speaker phone so they can listen.
Sometimes even this is too painful for one of the parties and if this cannot be done, we meet with one spouse, summarize the meeting, and email the absent spouse with the issues. The bottom line is that the process is always completely transparent.
Often the parties prefer not to come to the office at all. We can conduct a meeting via Skype or conference call, or if tempers are running very high, we often encourage communication to be in writing only. When people are in a high-stress situation such as a divorce, it often helps them to write out their concerns and thoughts. Further, they are unlikely to put extremely negative words into writing. While tempers may flare during a discussion, writing often provides that necessary bit of distance that enables a person to be calmer.
If the parties do choose to meet together, we insist that each be polite to the other. This includes giving each person a chance to speak without interruption, the mandate that no voices be raised, and that each party refrains from pushing the other’s buttons.
Why do people choose to mediate their divorce?
The most commonly given reasons people enter into mediation is that the process costs far less than litigation, the parties’ privacy is maintained, the parties end up making all or most of the decisions over their children’s lives, and ultimately, the parties end up at least being civil to one another.
What if mediation fails?
Just like anything else, mediation can fail. What happens if it fails depends on how you engaged your attorney in the first place. If you and your spouse jointly retained an attorney to mediate your divorce, then that attorney cannot represent either of you if your case proceeds to litigation. Thus, both of you must find new attorneys and begin again.
It is for this reason that one party will frequently engage our services with the understanding that we are to mediate their divorce if at all possible. This means that if the other party engages an attorney, we use all means at our disposal to reach a peaceful and advantageous settlement for our client. If the other party chooses not to be represented by an attorney, then we can meet with that party in an attempt to iron out the details of the case. When an agreement is reached, we always advise the unrepresented party to pick an attorney, pay their hourly fee, and have that attorney review the agreement we drafted. This approach works more often than not.
Sometimes we must advise our client that attempts to settle are leading nowhere and we should proceed to litigation, and sometimes we are able to settle part or all of the case. Usually, attempting peaceful means of resolution prior to going to court are always worth it. The judges appreciate it, and during the attorney’s fees portion of your case they will take into account whether you attempted to settle before proceeding to trial, and if so, whether your offers were reasonable.
When is mediation not the best option?
Divorce mediation is not the best option if you are in a situation involving domestic violence or the other party refuses to participate honestly. Mediation is also not effective if one of the spouses refuses to cooperate with the mediator’s guidelines.