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Mediation - Should You Use It for Your Divorce or Family Law Dispute?

Under the right circumstances, mediation can be an effective tool for resolving individual differences in connection with a divorce or other family law dispute. In many cases, it can provide significant cost savings as well. However, parties should be cautious about simply jumping into mediation. For all of its virtues, mediation does have some drawbacks, and in some cases it can be more expensive – and even counterproductive.

So, before moving forward with mediation as the primary method for resolving your divorce or dispute, it is important to take the time to understand the risks involved. We recommend speaking with a California Certified Family Law Specialist who can help you make an informed decision about your personal situation. Whether mediation is the best option for your divorce or family law dispute will depend on a number of factors unique to your individual circumstances.

Divorce and Family Law Mediation 101

Mediation is a form of "alternative dispute resolution" (ADR) commonly used in divorces and other family law matters. It involves the parties working with an independent third-party "mediator" who tries to help them come to terms without resorting to letting a judge make their decision for them. Instead of issuing a ruling, the mediator tries to help the parties see each other's perspectives and offers suggestions so that they can develop a mutually-agreeable compromise.

In the family law context, mediation is commonly used to address differences regarding:

  • Property division
  • Child custody
  • Child support
  • Spousal support

While these issues are most often addressed in connection with a divorce, custody and child support issues can of course arise outside of the confines of marriage, and parties often turn to mediation when seeking to modify their custody and support rights as well.

In mediation, the parties can work directly with a mediator, or they can each hire an attorney to represent them. Due to the complexities involved in most family-related legal matters, we generally recommend hiring a lawyer to help protect your interests in mediation.

Why Shouldn’t I Choose Mediation?

As we mentioned above, mediation isn't for everyone. If you are preparing for a divorce or struggling with a family-related legal dispute, here are some reasons why it might not make sense to use this form of ADR:

  • Lack of Commitment. One of the first requirements for a successful mediation is that both parties are committed to the process. If they aren't, in most cases trying to mediate will be a waste of both parties' time and money.
  • Lack of Common Ground. For mediation to work, the parties have to be capable of reaching common ground. If they are too far apart and unwilling to compromise, they may not be able to succeed with mediation.
  • Lack of Respect. Mediation is supposed to produce a result that works for everyone, but sometimes divorcing spouses and other family members will try to use intimidation or manipulation to get their way. If one party is susceptible to being unduly influenced by the other, then mediation isn’t a good choice.
  • Lack of Information. Part of the problem with jumping into mediation is that people often mediate before they have all of the facts. This can lead the parties to agree to terms before they have all of the information they need to make an informed decision.

Importantly, you may not always know in advance if someone is agreeing to mediate in good faith. For example, a spouse who is out for revenge or who wants to try to deplete the other spouse’s legal fund may try to use mediation as a weapon rather than a tool for compromise. This is yet another reason to be cautious about starting the resolution process with mediation.

When Mediation Makes Sense for Your Divorce or Family Law Dispute

Still, under the right circumstances, mediation can have substantial benefits. Not only can it save time and money, but in family law matters, it can also help prevent strained relationships from passing the point of no return. So, when do we recommend mediation?

We generally recommend using mediation as a part of the overall litigation process. What we mean by this is, rather than relying solely on mediation, we have found that it is often a more effective tool for resolving specific issues once a case is on track for trial. For example, say you are getting a divorce and you and your spouse are able to work together on dividing your property, but you have fundamental differences about how to raise your children. In this situation, it may make sense to mediate your property division while leaving custody to be battled out in the courtroom.

Or, maybe your case has been on the docket now for several months. You and your spouse have exchanged all of the key information in discovery, and maybe you’ve even had some preliminary negotiations. You’ve got a good idea of where things are going, and you think you may have identified some common ground. In this situation, you may be able to turn to mediation to structure a fully-informed and cost-effective resolution.


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