To Mediate or Not: Deciding Your California Divorce Path

            Divorcing couples in California struggle with the Shakespearean query:  “To be or not to be”; in modern terms: “To mediate or not to mediate.” Mediation, like any legal process, comes with its own unique set of advantages and disadvantages. Making the decision of whether to mediate a divorce is often nuanced and should be guided by your unique circumstances, goals, and relationship dynamics. Note: this article addresses voluntary, private mediation and not court-ordered mediation.

What is Mediation:

            In a California divorce, voluntary mediation is a confidential process where a neutral third party, called a mediator, assists a divorcing couple to reach mutually agreeable decisions on all issues related to their divorce. Mediation is an alternative to going to court, litigating the issues, and having a judge make decisions. In mediation, the couple actively participates in crafting the terms of the settlement agreement themselves, referred to as the Marital Settlement Agreement (MSA).

            The mediator’s role is not to take sides, advocate for either party, or make any hard and fast decisions about the matter. Instead, the mediator assists to identify areas of agreement and disagreement, offers legal information (but not legal advice specific to either party), explores options, and assists the couple in resolving the issues.

Pros of Mediation:

            Timeline: California’s family courts are overly burdened, which often leads to protracted timelines. Mediation, conversely, offers a much more flexible timeline. Couples can collaborate with the mediator to schedule sessions that work for everyone’s schedule and at a pace that suits the couple. If the couple is consistent with scheduling their sessions and remains motivated and committed to resolving the issues, the couple can resolve the divorce and associated issues faster thereby saving time and money.

            Cost-Effectiveness: Divorce proceedings often carry substantial financial consequences, especially when pursued through traditional litigation. Litigation typically involves protracted court battles, multiple filings, discovery requests, and potentially trial, each of which can significantly increase attorney’s hours and associated fees. If both parties are willing to engage in good faith, mediation is a way to lessen financial strain by removing litigation from the equation. Frequently, couples agree to split the cost of mediation which further reduces the cost to each party.

            Confidentiality and Privacy: Few people want the intimate details of their divorce aired in public. Court proceedings and filings are available to the public, unless sealed or deemed confidential. California law generally protects the confidentiality of mediation discussions, with variations depending on whether it is private or court-ordered mediation. While this article does not address court-ordered mediation, court-connected mediation programs, including what is made public, can vary by county.

            Tailored Agreements: In litigation, a judge makes the final decision, often imposing solutions that may not fully satisfy either party. Mediation, however, places the power back in the hands of the divorcing couple. Each party can be involved in crafting the solution for issues like property division, child custody, and spousal support, leading to agreements that address the divorcing couple’s unique circumstances which often leads to greater satisfaction for the couple.

            Reduced Emotional Strain and Improved Co-Parenting: The adversarial nature of litigation can exacerbate conflict. Mediation is intended to foster a more collaborative environment and encourage compromise. For couples with children, a less contentious divorce can pave the way for a more positive and effective co-parenting relationship in the future.

Cons of Mediation

            While the benefits are compelling, mediation is not the best path for every couple. Certain situations and dynamics can make it unsuitable and even detrimental.

            Power Imbalances and Coercion: This is perhaps the most significant drawback. If one spouse holds more power, whether due to financial control, emotional manipulation, or a history of domestic violence (which can include financial, physical, and/or emotional abuse), mediation can become an arena for further abuse or coercion. The neutral mediator, who ideally is trained to identify such imbalances, cannot always prevent one party from being intimidated or coerced into an unfair agreement. California law does have special rules for domestic violence cases in court-ordered mediation, allowing for separate sessions and the presence of a support person, but the inherent power dynamic can still be a challenge. In situations where one party frequently manipulates or dominates the other, mediation may not be the best approach.

            Lack of Legal Advocacy: A mediator is a neutral third party and cannot provide legal advice or act as an advocate for either party. While a mediator can educate both parties on relevant laws, he or she cannot tell you if an agreement is “fair” or in your best interest. This can be a significant disadvantage if one party is less knowledgeable about their legal rights or financial matters. It is often advisable for each party to consult with independent legal counsel throughout the mediation process. Seeking the advice of outside counsel can also assist if there is a power imbalance to potentially prevent one party from being coerced into an unfavorable agreement.

            Potential for Unresolved Issues: Mediation aims to reach comprehensive agreements, but some complex or deeply contentious issues may simply not be resolved through mediation. If parties remain unwilling to compromise on key matters, the mediation process can stall, leading back to litigation, which can result in wasted time and resources. It is important to realistically assess whether you and your spouse are committed to the mediation process before electing to move forward with mediation.

            Non-Binding Until Formalized: An agreement reached in mediation is not legally binding until both parties sign it. If one spouse has a change of heart before the agreement is signed, there may be limited recourse, potentially forcing the couple back to square one.

            Hidden Assets or Deception: Mediation relies on transparency and good faith. If one party is intent on hiding assets or engaging in financial deception, mediation may not uncover these discrepancies. Litigation, with its formal discovery process, is often better equipped to uncover hidden financial information. This highlights the importance of assessing each party’s commitment to the mediation process before proceeding. If either party is unwilling to negotiate or there are concerns about hidden assets, mediation may be ineffective.

Conclusion:

            The decision to mediate or litigate is an important one. Before embarking on either path, it is highly advisable to consult with an experienced California family law attorney who can assess your unique circumstances, explain your legal rights and options, and help you determine whether mediation is the most suitable and beneficial approach for you.

            Author Traci S. Mason is an attorney at Porter Simon licensed in California. She is the lead attorney for the firm’s Family Law Division where she focuses on all aspects of family law. Ms. Mason can be reached at mason@portersimon.com  or http://www.portersimon.com