Georgia Daniels, J.D., Mediator in Pasadena

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Pasadena Divorce Mediator

What to Expect From Divorce Mediation

This article presents some of the most common questions posed by families during the informational interview before engaging a divorce mediator. The informational interview is a time for potential clients to gather information about mediation in general and to assess whether the particular mediator consulted is a good fit for the parties.

What is mediation?

Mediation is the art of facilitated negotiations. In other words, mediation is a process in which parties to a dispute (say, a divorcing couple), communicate about their conflict with the help of a trained neutral, the mediator, with the goal of reaching a settlement. Some divorcing couples may be able to work out all issues dividing them without help. However, it is usually the case that people going through a divorce or other family conflict will need some assistance to reach an agreement that most effectively meets their needs and the needs of any children who may be involved.

Must a mediator be an attorney?

There are many mediators who are not attorneys. At the present time, most mediators come to mediation as a second career. While some come from law, many family mediators come from other disciplines, such as counseling, teaching, or religious ministry.

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What are the benefits of mediating a divorce as opposed to litigating?

The primary benefit is that the parties control the shape and terms of their agreement. In essence, they create their own customized agreement, tailored to their unique situation, within the statutory framework of California law. In addition, mediation is confidential- everything said during mediation, any draft resolutions or unsigned mediated agreements are considered settlement negotiations, and therefore will not be admissible in court. There are some narrow exceptions to confidentiality that are beyond the scope of this article.

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Are there any other benefits to mediation?

Research indicates that when the parties are involved in crafting their own agreements, the long-term compliance rates are much higher than when a court imposes terms on a couple. This is a big plus when there are children involved. Also, once parties have come to agreement in mediation, if circumstances change, they are more likely to return to mediation to modify their agreement rather than resort to litigation about the changed circumstances.

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What is the actual process, from start to finish, for a mediated divorce?

Couples enter divorce mediation at many points along the route. Some couples complete mediation of their entire agreement before they file the petition. Others file the petition, mediate their settlement agreement, and then complete the rest of the statutory process. Some couples start out litigating with attorneys, and then enter mediation with or without their attorneys present. There is no one right way; many paths may lead to agreement.

What are some of the alternatives to divorce mediation?

The worst-case scenario is the full-blown, litigated trial, costing upwards of forty thousand dollars, pleasing no one except perhaps the attorneys involved, who get to bill for hours and hours of very expensive time. Legal fees can run to $20,000 or more per party in a contested divorce.

Another alternative involving attorneys is the emerging field of collaborative divorce. California recently adopted a statutory framework for collaborative divorce, in which both sides have attorneys, but the attorneys file a stipulation that they will work collaboratively and try to avoid going to court. Typically, there are, in addition to attorneys for each side, one or more financial experts, sometimes a therapist consultant or coach, perhaps a mediator, and an advocate for the children. Logistically, trying to schedule all of these professionals to meet at one time is a challenge, and the cumulative hourly rate of all the professionals involved can be truly staggering. Collaborative divorce makes sense when there’s plenty of money involved, such as when celebrities divorce, but it remains a fairly expensive solution beyond the reach of many middle-class families.

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What other professionals are required for divorce mediation?

Typically, middle-class mediations might require the services of some outside experts, such as for pension evaluations or business valuations, appraisals of the family home, or various kinds of economic analyses. There may even be times when outside experts are appropriate for evaluating what is best for the children.

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Can’t we do it ourselves?

The least expensive route is for couples to purchase a “do-it-yourself” book, come to an agreement that meets their needs, and file their own papers. Sometimes this works well, but it is also possible that couples might be operating on mistaken assumptions that could prove to be very costly in the end. Or, their negotiations might break down and they would need to find a mediator to help them get back on track. Filing the petition for dissolution is fairly straight-forward, but filing and serving all of the papers required at the end of the process, to obtain a valid judgment, is much more complicated and can be rather stressful.

Many couples choose a middle route, by retaining a Legal Document Assistant to help them file the paperwork without retaining attorneys, or by retaining one attorney to file the petition, which is expected to be uncontested because the parties will create, or have already created, their final agreement through mediation.

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If we are mediating, do we really need attorneys?

Couples who choose to mediate their divorce are well-advised to contact mediation-friendly attorneys for individual consultations at least once and preferably twice: toward the beginning of the mediation, and again before completing an agreement. When the settlement agreement is about the ninety-five percent complete, the parties should meet with their own consulting attorneys, and then return to mediation to make whatever final adjustments are necessary to their agreement. It is important to emphasize that the consulting attorneys should be familiar with mediation, so that they do not undermine the entire mediation process. Consulting attorneys typically charge an hourly fee, but generally do not demand the large retainers that would be the norm for a full representation with litigation.

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How much does divorce mediation cost?

Fees for mediators can vary widely, ranging from $200/hour up to $700/hour or more for long-established, top-tier divorce mediators. Other costs include the court filing fees for the petition and for a response, if desired. Then, there may be fees for experts for necessary services such as pension evaluations, appraisals, and fees for consulting attorneys or preparation of special orders known as QDRO’s for division of certain kinds of pensions. The fees for experts can vary widely, from a couple of hundred dollars to several thousand, depending upon the complexity of issues involved.

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What is a ball-park figure for reaching a mediated divorce settlement?

There is no exact way to predict how long or how expensive a mediation might be. The bottom line is that the higher the level of conflict in the relationship, the more it will cost because more sessions will likely be necessary to come to agreement. Also, if the couple’s financial situation is complex, more sessions may be required, and more expert opinions may be necessary. If there are minor children, probably at least a couple of sessions would be devoted to developing a parenting plan and appropriate child support.

After the initial phase of assembling all of the documents and information, some couples can reach agreement in one marathon session. However, most family mediators work incrementally, mediating for three to six sessions (or more) of about ninety minutes to two hours each. Typically, mediation starts with small, easy agreements, and then moves on to the tough ones. In addition, most mediators spend a fair amount of time outside of actual mediation sessions in phone calls or email correspondence with the parties, or in research, writing summary memos and drafting agreements. Predicting the exact cost for mediation fees is impossible; a common ball-park figure is $2,000 to $3,000 for a relatively simple agreement involving children and support, without attorneys present in the mediation sessions. It might be less if there are no minor children, and it could be much, much more if there are complex financial issues or a higher-than-usual amount of conflict between the spouses. The presence of consulting attorneys in the mediation sessions tends to increase the cost, but they can be essential in complex cases.

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How does “thinking outside the box” relate to divorce mediation?

The divorce mediator aims to find ways for each party to meet his or her needs in a comprehensive agreement. In popular terms, mediators strive to think outside the box, or rather, to facilitate the clients in thinking outside of their boxes, so the clients can find solutions to their problems that are uniquely appropriate for them.

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What is an example of “outside the box” thinking in mediation?

To give an example of the kind of problem solving that may go on in mediation, suppose there are two sisters squabbling over the one remaining orange. The mom, in exasperation, takes a knife, slices the orange in half, and gives each girl a half. This is an example of external compromise, a solution imposed from outside the conflict. But what if really, one sister wanted the skin of the whole orange as zest to season some scones she was planning to bake, and the other sister wanted only the meat of the fruit? By collaborating, each sister could have fully satisfied her needs.

Not every divorce has showy “outside the box” potential for solutions. Sometimes it’s more mundane, just going through the list of items to be covered, probing needs, distinguishing wants from needs, noting where interests coincide or where complete satisfaction of both parties is unlikely, and coming up with the best agreement possible in the circumstances. Most of the time, there won’t be quite enough money for both parties to live in the style to which they would like to be accustomed, and tradeoffs will have to be made.

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What is the end product of divorce mediation?

The end product is an agreement, in writing, that addresses all of the issues required or desired to be settled by the parties. It may take the form of a “Memorandum of Understanding,” which sets out all of the terms of the agreement, or a “Marital Settlement Agreement”.

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Is there anyone for whom mediation is not appropriate?

Individuals with untreated substance abuse issues are probably not good candidates for mediation. Families in which there are allegations of abuse and restraining orders are in effect will present considerable challenges for the mediator, and should be very carefully assessed for mediation readiness. Successful mediation relies upon the good faith participation of the parties. It is rare, but possible, that a party may attempt to exploit the mediation process for perceived benefits in subsequent litigation. The ethical mediator continuously assesses, throughout the process, whether mediation continues to be appropriate for the parties.

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What should families look for when selecting a mediator?

Choosing a mediator is similar to selecting any kind of professional, from accountant to physician to therapist. Ask people you trust for referrals. Look for experience, training, and high ethical standards. Look for a mediator who is constantly refining his or her skills through continuing education and through membership in organizations such as the Southern California Mediation Association and the national Association for Conflict Resolution.

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Los Angeles Negotiation Mediator Disclaimer: The California divorce mediation, estate planning mediation, family business conflicts, or other mediation information presented at this site should not be construed to be formal legal advice, nor the formation of a mediator/client relationship. Any results set forth herein are based upon the facts of that particular case and do not represent a promise or guarantee. Please contact a Pasadena Mediator for a consultation on your particular conflict or dispute. This web site is not intended to solicit clients for matters outside of the state of California.

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