A mediator is not an advocate for either party. The mediator is impartial. In mediation, the mediator has no power to decide disputed issues. Issues get resolved by mutual agreement of the parties. Mediation is not arbitration. In arbitration, a neutral arbitrator decides issues, like a judge decides issues. In mediation, the mediator’s role is to facilitate the process of making agreements. Sometimes, the mediation process is not successful. At anytime, either party can immediately stop the mediation process. If the mediation process is stopped, the mediator is prohibited from representing either party in any subsequent litigation.
Mediators have different styles. One style is to provide the parties with lots of information. With this style of mediation, the mediator may explain what the law is and what the likely result would be for a disputed issue if the parties were to litigate that issue. For example, the mediator may explain exactly how the court determines the amounts of child support and spousal support. The mediator may run support calculations, including all the variables and tell the parties how much support a court would likely order in their case if the matter were litigated. The parties are then free to agree to typical support amounts or to agree to a different support arrangement based on what works best for them. Another style of mediation involves a mediator that provides little or no information about the law or typical results if the matter were litigated. Mediators that practice this style believe the parties should be free to negotiate and enter into a settlement agreement based on what they believe is fair and not based on the laws courts apply to other cases.
Some parties participating in mediation will hire a consulting lawyer on the side. The consulting lawyer can attend mediation sessions, but usually does not. A consulting lawyer will coach the client as the client goes through the mediation process. For example, if a client is going to meet with a mediator to discuss support issues, the consulting lawyer may first meet with the client and fully educate the client on support related issues. The consulting lawyer may tell the client all of the facts and arguments that they need to make to the mediator in support of their position. The consulting lawyer may tell the client what a fair support number is so that, during mediation, the client can recognize when a settlement proposal that is made in mediation is a good deal, fair deal or bad deal. In addition, a consulting lawyer can review a draft settlement agreement that the mediator has prepared to ensure the client fully understands the terms of the settlement and to point out any provisions that may be unfair or otherwise inappropriate.
There are numerous benefits to mediation including the following:
When the parties use mediation, they are typically splitting the cost of one lawyer (the mediator), instead of paying for two lawyers. In addition, the goal of the mediator is to assist the parties in reaching an expeditious global settlement (as opposed to two contentious lawyers possibly escalating conflicts and fees). Mediation offers the opportunity for quick resolution. As soon as an agreement is reached, the Judgment of Dissolution and other paperwork can be drafted quickly. The longer the divorce process takes, the more expensive it will be.
Mediation is confidential:
Divorce litigation at the courthouse is open to the public. Anybody can go to any of the divorce departments and watch hotly contested, emotionally charged divorce proceedings. Private information, both personal and financial, is discussed in open court, usually in the presence of dozens of strangers waiting for their own cases to be called. In mediation, confidentiality is protected by law. California Evidence Code 1119 makes all communications, negotiations, and settlement discussions between participants in mediation confidential. Divorce settlement discussions require the disclosure of very private and sensitive information. Mediation affords the parties the protection of confidentiality.
Clients control the process:
In mediation, the parties control the process in many ways. With mediation, you and your spouse pick a mediator that you like, as opposed to the court assigning a judge to your case. In mediation, you control how quickly the divorce process progresses. In mediation, you can elect to meet with the mediator quickly and with short intervals between meetings until a settlement is reached. Alternatively, if one or both parties need time to adjust to the idea of being divorced, then the mediation sessions can be stretched out over a longer period of time. In mediation, you can spend as much time as is needed to negotiate a particular issue. In litigation, you are generally given a set number of minutes, hours or days by the court for a particular hearing or trial. During a court trial, the court time is shared with the opposing party. Oftentimes, you are unable to present evidence or arguments to the court due to time constraints. In mediation, the parties control the pace and the results because the parties control the decision making processes.
You are directly involved in the settlement process:
In mediation, you are always present during the negotiations. The parties meet with the mediator together. Everyone is usually copied on all communications. In litigation, parties are not always directly involved in the settlement process. In litigation, when the court has a Settlement Conference, the lawyers meet with the judge in the judge’s chambers to discuss settlement, while clients sit in the courtroom or the court’s hallway. Clients are then informed by their lawyers that they need to settle on certain terms because that is what the judge indicated in chambers during the Settlement Conference. One problem with litigation is that clients often feel they never had a chance to be heard. Much of the time, information is communicated to the court through lawyers. Clients do not get the opportunity to negotiate directly with their spouse because everything has to go through the spouse’s lawyer. In mediation, you sit in the same room with your spouse, explain how you feel, explain why the settlement you have in mind is best for the family and is fair. Direct negotiation with your spouse saves time and money. In litigation, it is frustrating to propose a settlement through your lawyer and then wait weeks for the other lawyer to respond.
Mediation saves time:
In litigation, you are at the mercy of the judge’s calendar. The litigation process moves exceedingly slowly. It can take more than a year to get a trial date and, if you don’t finish the trial in the time allotted by the court, you may have to wait months before getting a new date to conclude the trial.
Mediation is less stressful:
Litigation is about conflict. Conflict negatively impacts social relationships and negatively impacts your ability to do your job or run your business. Many people have difficulty focusing on their jobs when they are involved in divorce litigation because of the high level of stress. High levels of conflict also affect people’s health. Most importantly, conflict between parents creates stress for the children. One of the main goals of mediation is to reduce conflict by encouraging parties to work with one another to reach fair settlements. It is better for children to know that their parents are working with one another in mediation to negotiate a mutually acceptable settlement, rather than to believe their parents are using their lawyers to battle each other in court.
Mediation builds on the positive:
The strategy for most litigation is to exploit the negatives about the other person. You “win” your case by telling a judge all the negative information you can prove about your spouse. This is not a good approach if, after your case is concluded, you still have to interact with your former spouse, such as continuing to co-parent children. In mediation, the mediator is trained to focus on the positives of each party and to help the parties recognize common ground for settlement purposes.
Mediation is not for everyone:
Mediation is not appropriate for everyone. If one or both parties are dishonest and will attempt to conceal assets and income, then the parties should be represented by independent lawyers that can subpoena records, take depositions, and propound discovery in order to flush out assets and income. Mediation is not appropriate where there is a history of domestic violence because one spouse may coerce and intimidate the other spouse into an unfair settlement.
Some lawyers offer virtual mediation. Instead of meeting with your spouse at the mediator’s office, you conduct mediation virtually though a computer link. Virtual mediation is not the same as sitting in the same room as your spouse and discussing issues. However, you may not want to sit in the same room as your spouse. Virtual mediation may also be an attractive option if it is difficult to schedule an appointment with the mediator that fits everyone’s schedule. Virtual mediation may also be a good option if you and your spouse live far apart.