Articles Posted in Mediation and Divorce

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When going through a divorce, there are a lot of decisions that need to be made. Who will get the house? Who will the kids spend the holidays with? Who keeps the beloved family pet? These and many more questions will come up throughout the divorce process and will require either you and your spouse or the Judge to make a decision. One decision, however, that will be up to just you (and hopefully with the cooperation of your spouse) is whether to litigate or mediate some or all aspects of your divorce.

It’s common to want to take everything to trial when there are a lot of fuming emotions between you and your spouse. Many spouses feel that if they litigate their case, it will act as a type of revenge against their spouse. However, before you shut your eyes to the option of mediation or otherwise settling outside of court, here are a few things you might want to consider:

Money, Money, Money! Can you really afford the expense of a trial? If you have sufficient funds in your back pocket to fight your case and you aren’t in a hurry to get the divorce over with then ligation might be the avenue you want to take. However, keep in mind that it is very likely that the cost of going to trial will be greater than the amount of money you would lose by agreeing to your spouse’s settlement offer. This doesn’t necessarily mean that you need to agree to an unfair offer just to avoid trial on the issue. Such a decision really requires a cost-benefit analysis. If you are on the fence, your divorce attorney can walk you through the pros and cons of settling an issue outside of court or taking it to trial. It’s important to look at the big picture and decide if a $1,000 issue is worth possibly spending $10,000 in court to fight over or not.

Can you handle the heat?! Can you and your family withstand the immense amount of stress that comes with a trial? Litigation can be not only financially draining but also emotionally draining. You aren’t only putting an immense amount of stress on yourself, but also those who are standing by you throughout the process (your children, your family, your friends). However, some issues are simply worth the stress. For instance, if you are fighting for custody of your child, the stress of a trial is minor compared to the stress that you could potentially endure in the future if not awarded custody.Risk Taker or Risk Averse? How much are you willing to hand over control to a Judge? When going before a Judge there is no guarantee as to whether or not he/she will see things your way. So even if you think the Judge’s decision is unfair, it will be final (unless there are grounds for appeal). If you are willing to take that risk then go for it. But if you are more risk averse you may want to consider the benefits of settling with your spouse outside of court.
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Many couples in San Diego opt to mediate rather than litigate their divorce. Mediation can provide the parties with many advantages unavailable in litigation such as customized agreements and quick results. One of the most popular motivations for mediating a divorce is to minimize the attorney fees and costs associated with litigation preserving as much of the parties’ estate as possible. Spouses who litigate their divorce without attorneys often feel apprehensive regarding the process and hesitate to reach agreements. Below is a list of things spouses can do to prepare for their first divorce mediation session without an attorney present.

Get Organized: You can maximize the productivity of your mediation session if you come prepared with organized financial documents regarding all of your assets and debts. It may also be helpful to make a list of all of your assets and debts to present to the mediator. For support purposes, the mediator will also need proof of income for both you and your spouse. You should bring recent tax returns and current paystubs to the mediation.

Prepare Emotionally: Mediation is not the time to express all of your anger and frustration for your spouse. Emotional outbursts and cruel, hurtful, or sarcastic comments can derail the mediation process. Before mediation try to create a list of your goals and consider what is most important to you. If you start to get upset during mediation refocus yourself on your goals.Prepare Negotiation Points: A mediation session is a negotiation facilitated by a neutral third party. The mediator will help you negotiate with your spouse and a list of prepared negotiation points will assist the process. Remember mediation is centered in negotiation, not argument. Avoid arguing with your spouse during mediation by refocusing on your negotiation points.

Familiarize Yourself with the Process: You can speak with the mediator and/or his or her office staff regarding the mediation process prior to your formal session. If you are familiar with the process you will learn that you have the ability to speak with the mediator privately during the mediation session. This means that if you have concerns that you do not want to share with your spouse, you have options. Prior to mediation, you can consider if you have anything you would like to share privately with the mediator.

Meet with a Family Law Attorney: A family law attorney can consult with you while you are going through the mediation process. Notably, an experienced family law attorney can evaluate your case from a litigation standpoint and explain your legal rights before you enter into any negotiations. Further, once you have reached what you think is an equitable resolution with your spouse during mediation; you can bring a copy of the agreement for your attorney to review prior to signing it. This way you can rest easy that your settlement is fair and reasonable.

Create a Budget: You should walk into mediation with knowledge regarding how much money you spend on a monthly basis and how much money you will need to pay your living expenses. This information will be crucial to both property division and support discussions and will provide you a basis from which to negotiate from.
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As we have previously blogged, there are two distinct divorce paths that spouses can take in a San Diego divorce proceeding, the litigation path and the mediation path. As the case goes on, parties may end up using a combination of the two approaches. Part one of this blog explained the litigation process and its many disadvantages such as its high cost and lengthy waiting periods. By contrast, the mediation process is more efficient, less expensive, and less stressful for all parties involved, especially the children.

The Mediation Path If the parties and their attorneys determine that they are able to work cooperatively with the other side and that court intervention is not necessary, they may elect the mediation process outlined below. A mediated divorce typically proceeds as follows:

The parties must first decide if they will retain independent counsel, usually a divorce attorney experienced in advising clients in mediation. In addition, a third party neutral will be selected, regardless of whether the parties have retained counsel or if they will both meet with the neutral unrepresented.

Read questions frequently answered by divorce attorneys

Next, the parties should determine which issues are settled and which issues are disputed. For example, in a Del Mar divorce the parties may realize they agree to divide all of their property equally, but happen to disagree on a reasonable amount of monthly spousal support.

As in the litigation process, the parties must also complete their Declarations of Disclosure including a Schedule of Assets and Debts and an Income and Expense Declaration. However, the parties will not engage in expensive and lengthy discovery because they have decided to cooperate with each other informally.
Once the parties have met with the mediator and agreed on all terms of the settlement, the mediator may draft a martial settlement agreement and file all necessary paperwork with the court.

Learn terms commonly used in a San Diego divorce proceeding

It is evident from the above timeline that a mediated divorce take much less time, effort and money than a litigated proceeding. The better the parties work together to resolve their disputes, the lower the cost of the divorce. There are no “winners” if a divorce case goes to trial because each party will have incurred significant expenses and emotional scars. In mediation, parties have the flexibility to create their own terms and solutions which are mutually beneficial.

www.BickfordLaw.com


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The State of Alaska is reforming the way a divorce case proceeds through the court system. The new program named the Early Resolution Project is aimed at resolving divorce cases quickly and efficiently. One distinguishing characteristic of Early Resolution is the emphasis on settlement. Under the program, the Anchorage Superior Court addresses several divorce cases in one afternoon on a biweekly basis. On this afternoon, the parties are give free legal advice and encouraged to reach a mutually beneficial agreement.Superior Court Judge Stephanie Joannides envisioned the program as a result of her experience in the Alaskan family court system. She was concerned because many divorce cases are assigned a court date that is several months after the initial filing. This waiting period caused the parties to become firm in their positions and unwilling to compromise. Judge Joannides proposed to attempt to resolve these divorce cases early in the process and has seen promising results. In the first year, eighty percent of cases settled as a result of Early Resolution.

Besides a quick resolution to the case, the Early Resolution program and others like it offer a number of fringe benefits to the parties. Like any case that settles early in the litigation process, a divorce settlement can save the parties a great amount of money. Litigating a family law case in San Diego involves filing fees, court costs and attorney’s fees. If a case settles early, the parties will not be responsible for any further costs and fees. Another benefit to dispute resolution is the preservation of the relationship between the parties. Litigation has the tendency to ruin the relationship between the parties indefinitely. However, in family law cases involving children, it is crucial for the parents to maintain a co-parenting relationship. Although the California Family Code is often clear, family court judges have an element of unpredictability. The facts of a case may be disputed and therefore the outcome can be uncertain. If parties reach a settlement they are in control of the outcome of the case. In family law cases, the outcome often has life-changing consequences for both parties. In order to have input in the final decision, the parties much reach an agreement.

The San Diego family court system has a program similar to Alaska’s Early Resolution Project. In San Diego, the family court judge will assign the parties a Mandatory Settlement Conference (MSC) date before any case will proceed to trial. Unlike in Alaska, the MSC will occur toward the end of the parties’ case. The MSC will take place at the San Diego Superior Court where the parties have been litigating their case. A settlement conference judge will be assigned to the case. These judges are experienced local family law attorneys who have volunteered their time to help parties resolve their cases before trial. Because they have so much experience with San Diego family law, the settlement judges are able to help the parties predict what the judge will likely do at trial and reach a settlement agreement based on the probable outcome. The benefit to reaching an agreement during the MSC is avoiding trial. The parties are able to avoid the cost, time and emotional toll of a trial.

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