Mediation
How to settle your case out of court and save money.

Mediation is an alternative way to resolve disputes outside the courtroom. In divorce mediation, the couple hires a trained, neutral and impartial mediator to facilitate their discussions with each other and to help them resolve the issues in their divorce by communicating with each other in a safe, private setting.

What are the advantages of mediation?

  • Mediation is confidential
  • Mediation is voluntary
  • The spouses make their own decisions instead of giving all the decision-making power to a judge
  • IThe couple can go at their own pace instead of being subject to court-imposed deadlines
  • Mediation is far less expensive than litigation

Private divorce mediation should not be confused with mediation that is required by the court. In California, mediation is ordered for all court cases in which the parents are disputing custody of their children. However, in San Diego County, this mandatory custody mediation is not confidential, and if the parents do not reach agreement, the mediator will make a recommendation to the court on custody and visitation.

In contrast, private divorce mediation is always confidential, meaning that if the mediation does not produce an agreement and the case ends up in court, the mediator cannot be compelled to testify about any of the discussion during mediation. The parties can disclose to the court that they tried mediation, but all of the discussions during mediation are confidential and not admissible in evidence.

What are the disadvantages of mediation?

Mediation is not for everyone. The couple does not need to be amicable; after all, they are getting a divorce! But they do need to be able to express their concerns to each other, to listen to each other, and to share information with each other. Mediation may not succeed if one spouse feels less powerful than the other, or feels intimidated or controlled by the other spouse, or where there has been physical or emotional abuse during the relationship. Sometimes one spouse will try to use mediation to promote their own agenda, and to coerce the other party into accepting an unfair settlement. A good mediator will stop the mediation if this occurs.

What is the difference between Arbitration and Mediation?

Arbitration is closer to litigation than mediation. In arbitration, the parties, usually with the assistance of their attorneys, hire a neutral and impartial arbitrator to hear testimony, receive evidence, and issue a decision, called an award. The arbitrator may be an attorney or a retired judge. The parties can agree in advance that the arbitration will be binding. If the arbitration is not binding, the parties can contest the arbitrator's award in court. Sometimes the spouses have entered into a prenuptial agreement before their marriage which requires arbitration in case of divorce, or they may choose arbitration over litigation because it is private and less formal than a court trial, and can be scheduled at the convenience of the parties. However, arbitration, unlike mediation, is not confidential. A court reporter will be present to record the testimony, so that a transcript can be made if necessary. In arbitration, as in litigation, the parties give up decision-making power to a third party - the arbitrator.

What is Collaborative Divorce?

Collaborative divorce is the newest dispute resolution process. In a collaborative divorce, the parties sign a Collaborative Law Participation Agreement in which they agree not to go to court while they are negotiating the issues in their divorce. The Collaborative Agreement represents a commitment by both spouses and their collaborative counsel to settle the case. The Agreement is signed by both parties and their collaborative counsel. Attorneys who practice collaborative law must have specialized training, and in a collaborative case, they must agree that if one party decides to go to court, the collaborative counsel who represents the parties must withdraw, and the parties must retain new counsel. For more information, please visit the website of the Collaborative Family Law Group of San Diego at www.collaborativefamilylawsandiego.com.

Marital Settlement Agreements

If you and your spouse reach an agreement for settlement of all the issues in your case, it will be written up by one of the attorneys in a lengthy document called a Marital Settlement Agreement (or "MSA"). The MSA is typically 30-50 pages long, and it contains all the agreements for child custody and visitation, child support, spousal support, division of community property, and other provisions. The attorney who drafts the MSA will obtain the client's approval first, and will then send the MSA to the other attorney for review. Usually changes will be requested, and the MSA may have to be revised several times. When everyone has approved the MSA, it will be signed by both parties and their attorneys. The MSA will be attached to the Judgment of Dissolution and filed with the court.

Sometimes the parties want to keep the MSA confidential, and in that case, only a Memorandum of MSA will be filed with the court, and each party will retain a duplicate original of the MSA itself. If problems arise in the future, the original MSA can be lodged with the court for review by the judge, while maintaining confidentiality. This is important, because the court file is open to the public, and anyone can ask to review your file and even make copies of the contents.