Frequently Asked Questions About Mediation

Mediation allows divorcing couples to make their own decisions and control their future by facilitating the dialogue and the conversations necessary to make agreements that are in the best interest of their family. The decision-making process learned in mediation can provide a model for successful co-parenting in the future. And, satisfaction with mediated settlements is typically higher because both parties have worked together to create their own agreement.

Mediation is a dispute resolution process where a third party assists or facilitates the parties to a dispute in finding a mutual resolution. In mediation, those participating make the decisions, allowing them to define and clarify issues, explores possible solutions, and if the parties choose, a mutually satisfactory agreement. Mediation provides opportunities to improve relationships through expressing differences and mutual understanding.

A mediator facilitates communications between the parties by ensuring that each is given uninterrupted time to speak, asking for clarification when necessary, and helping to ensure that the parties understand each other. The mediator also provides information about the law and the legal system, but not individualized legal advice.

The mediator and the couple identify the issues that need to be discussed and an agenda for addressing them, and identify the information that needs to be gathered and determine who will gather what information. Further discussions address specific issues to be resolved with a focus on the needs, interests and goals of each in order to reach an agreement that works for both parties and their children. When a complete agreement has been reached, an agreement is drafted that reflects the agreements and understandings of the couple.

Either the mediator or the parties can file the necessary papers and this determined in the mediation. If desired by the parties, the mediator can assist in preparing and filing court documents, including the petition for dissolution of marriage, the necessary disclosure documents, the agreement, judgment, and other final papers.

No court appearances are necessary.

It depends on the complexity of the issues to be addressed and resolved and the ability of the parties to seek to understand each other and be flexible in reaching agreements. Every case is different, but the average case usually takes approximately three or four two-hour mediation sessions, over a period of two to three months.

Mediation is generally far less expensive than litigated divorces. And, remember there is also the “emotional cost” that is higher with litigated divorces. (Link to article on comparison of divorce and mediation costs)

Both parties are encouraged to obtain independent legal advice and to have their lawyer review the agreement before signing. Even when the mediator is a lawyer, he or she can only give legal information and cannot give individual legal advice to either party.

Under California law neither party can use what is said or produced in mediation as evidence in court.

Generally, all issues can be resolved through mediation, but if not, the mediation is seldom wasted, because even if you need to litigate one issue, the litigation will be narrowly focused on the specific issue and therefore, less costly.

Mediators are trained to help couples who are in high conflict but who still would like to work things out peacefully. If the conflict and poor communication is beyond the expertise of the mediator, couples can engage the assistance of divorce coaches, mental health professionals trained in mediation and collaborative practice, to assist with emotional and communication difficulties.

It is the mediators job to ensure balance and to ensure that one party does not overpower the other in mediation. If one of the parties is unable to be effective and to express his or her needs or if one party is overly controlling, the mediator will terminate the mediation. However, many people who believe themselves to be the "weaker" party are often very effective in mediation.