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California: FAQs About Divorce Mediation
(provided by Elana Auerbach Weiss)

What is Family and Divorce Mediation?

Mediation is a tested, more sensitive approach to separation and divorce. It is a non-adversarial process helping people to dissolve marriages, or domestic partnerships, once the decision to separate is made. The framework provides partners the opportunity to negotiate mutually beneficial agreements that include property settlement, spousal support, child support and custody.

What is the Role of the Mediator?

A mediator is a neutral party trained to help couples resolve the inevitable disputes that arise during separation. He or she helps the couple explore all options and their consequences. The mediator brings knowledge and experience that provides a context for decision making. When necessary, the mediator will refer the couple to third party experts for services such as appraisals. At the end of the mediation, the mediator will prepare a Memorandum of Understanding that summarizes the agreements reached in the process. For couples who have the ability to resolve their differences themselves, mediation services can be used to assure that the substantive terms of their agreements are fair.

What Are the Advantages of Mediation?

Family and divorce mediation promotes cooperation and self-determination that will continue well past the period of controversy. The process helps eliminate the win-lose atmosphere that is part of many divorces and family controversies. It consists of a mutual search for reasonable solutions.

The couple's continuous involvement in the total decision-making process leads to greater satisfaction with the solution and more incentive to follow through with the decisions made as a result of their ownership of the decisions. Mediation is also effective for post divorce conflicts arising out of the changing needs of the family.

Am I a Good Candidate for Mediation?

Successful mediation requires that both parties have a mutual desire to resolve the issues themselves, constructively and economically. They are willing to deal with each other in good faith and cooperate with the mediator. The appropriateness of mediation can best be assessed and determined at the initial session between the mediator and the parties.

What Role do Lawyers Play in Mediation?

Following the mediation process, clients arrange for an attorney or other qualified persons to prepare a settlement agreement, based on the decisions agreed upon in the Memorandum of Understanding. All clients in divorce mediation are advised to retain separate counsel to review this agreement. You may also need a lawyer to assist you with filing a complaint for divorce and completing the final hearing in which your agreement is presented to the court as the terms of your final judgment of divorce.

How Much Does Mediation Cost?

The total cost of mediation combined with lawyer's fees is often less than one-third the cost of a litigated divorce. Additionally, since there are no retainer fees and mediation fees are paid after each session, clients can maintain control of their expenses This is a sharp contrast to the litigation process that can be expensive and time consuming, leaving each party heavily in debt, and drained, both emotionally and financially.

How Long Will Mediation Take?

All mediating clients are understandably interested in and concerned about how long mediation will take. The time it takes to reach an agreement depends entirely on how long it will take you to reach what you perceive to be your fairest and most constructive agreement possible.

Mediation is task oriented with a goal of reaching agreement. This agreement may be reached in a very short time in situations where mediating parties are already at a very high level of agreement and are able to specifically describe that agreement. In situations where there are a number of "open issues" (either disputed issues or issues that have not been well considered), the mediation will take a bit longer.

What Are Our Chances for Success in Mediation?

As many as 80% of mediating parties reach comprehensive resolution, with at least half of the remaining 20% reaching at least some significant substantive resolution (e.g., parenting arrangements or financial resolution, but not both).

What If We Don't Reach Agreement?

In the event no agreement is reached in mediation, other settlement options can be explored. Even unsuccessful mediating parties often seem to obtain substantial benefit from having had the opportunity to fully communicate and by having given it their best effort prior to recognizing that attorney negotiation or litigation may be inevitable.

Who Pays for the Mediation?

Responsibility for the mediation fees needs to be decided between mediation participants. The key, however, is that the parties themselves agree upon the division of the fee in whatever way seems fairest and most appropriate.

What Can I Do to Ensure a Successful Mediation?

Perhaps the most important thing any mediating party can do to ensure a satisfying and successful mediation experience is to prepare for the mediation discussions by seeking clarity as to individual desired outcomes and perceived standards of fairness. Being able to listen to the other party's point of view, even when you don't agree with it, will allow you to develop options that meet both of your needs. It is in the ability to see the whole picture from both perspectives that a mutually satisfying agreement will arise.

Information provided by:
Elana Auerbach Weiss

Recommended Resources:
California Divorce Source
California Divorce Laws
California Community Forum
California Divorce Resources

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