What is mediation?

Over 65% of people in California are divorcing without lawyers.  And 80% are without lawyers by the end of their divorce case.

What are these people doing?  You can’t get a divorce in this state without a judge’s signature on a piece of paper.

Many people are muddling through the legal system as the court and lawyer-dreaded “pro pers.”

Other people are opting for a sensible method of guided divorce with trained, professional mediators.  Done properly, no one has to go to court to get that judge’s signature.

There is also a process called “collaborative divorce” where wife and husband each have a lawyer and a coach, a psychologist for the children, an accountant and other professionals.  This is more expensive than mediation, but less costly than litigation.

As defined by the American Bar Association (ABA) Standards of Practice for divorce and family mediation, “Mediation is a process in which a lawyer helps family members resolve their disputes in an informed and consensual manner… the participants reach decisions voluntarily… their decisions will be based on sufficient factual data, and…each participant understands the information upon which decisions are reached. While family mediation may be viewed as an alternative means of conflict resolution, it is not a substitute for the benefits of independent legal advice.”

Actually, in California, it is not required that divorce mediators be lawyers.  In fact, there are no requirements at all, officially, for calling yourself a mediator.

But the ABA standards for lawyers say, “This process requires that the mediator be qualified by training, experience and temperament…,” so it would be wise for a person to check out the training and experience of a mediator before hiring that person.

A mediator ought to offer an initial consultation at no charge to explain the mediation process, to help people decide if mediation is right for them, and to decide if they feel comfortable with the skills of that particular mediator.

Instead of hiding behind lawyers in a mutually destructive–and expensive–contest beyond one’s ability to control, people in mediation become able to talk with a soon-to-be-ex-spouse and remain in control of their lives, their children and their money.

Mediators can make suggestions and proposals, but all decisions are made by you and your partner.

The essentials of a divorce are not complex:

1. Identify all property (real, personal, financial) and debts;
2.  Characterize all property or debts as separate or community;
3.  Establish values for all property;
4.  Divide property and debts fairly between the two people;
5.  Decide what if any spousal support is appropriate; and
6.  (If you have children) Work out a parenting plan and  child support.

These essentials can be made very complex.  There is a sensible way to become single again, yet protect your interests.  That way is mediation.

mediator can organize ways to identify your property and characterize it.  A mediator can help you find mutually agreeable ways to establish values for all your property.  No need for each of you to hire a separate forensic accountant and a separate appraiser.

The mediator can make sure you acquire enough information and have enough analysis so you are able to carry on effective negotiation.  Maybe you need a divorce financial planner.  Maybe you need a consultation with a lawyer.  Whatever each party needs to get to an agreement is a constructive step towards the  objective – a decent divorce.

You can try a mediation session to see if you like it, or if it will be responsive to your needs and still opt for the litigated adversary approach later.

But once you cross the line into litigation, you probably will evolve into so much hostility, you can’t get off that plunge into the pit.  Family law as practiced in the courts of this state has become quite dysfunctional.

Mediation: try it; you might like it.