How to Resolve Contested Divorce Mediation

Many divorcing couples in California are taking advantage of alternative dispute resolution to save time and money on their divorce cases. Divorce mediation has quickly grown to be the most popular form of alternative dispute resolution, allowing divorcing spouses to resolve their dissolutions under the supervision and direction of a neutral mediator. However, while many choose alternative dispute resolution to avoid the time investment, stress, and expense that divorce litigation demands, the reality is that even divorce mediation can devolve into a hotly contested legal battle.

It’s important to remember that divorce mediation only requires both you and your spouse to be willing to negotiate. Even if the two of you have trouble having the most basic civil discussions, you can still take advantage of the benefits of divorce mediation when you have legal counsel you can trust.

Understanding the Role of Your Mediator

If you have decided to end your marriage or if you and your spouse have reached a mutual decision to divorce, it’s important to avoid some common misconceptions about divorce mediation. First, your chosen mediator is not a replacement for a divorce attorney. The mediator can answer general legal questions and clarify aspects of California divorce law, but they cannot provide direct legal counsel or advice of any kind to either divorcing spouse.

While not strictly required, you need to have your own divorce attorney to take full advantage of the benefits that divorce mediation can offer. Your mediator will help you and your spouse address each topic in your divorce item by item, drafting your divorce order’s terms as you complete your negotiations.

Most Common Points of Contention in Divorce

It’s important to remember that divorce mediation is an opportunity to privately negotiate the terms of your divorce with your spouse and then present them to the family court for final review and approval. Therefore, you must address as many issues as possible if you want to extract maximum value from your alternative dispute resolution proceedings. A few of the issues you must address in mediation include:

• Review of a prenuptial contract, if you and your spouse have one in place. As long as the contract is legally enforceable and includes postnuptial terms and provisions, it could act as a blueprint for divorce, and mediation may reduce to little more than a formal review of the contract and implementing its terms into a negotiated divorce order.
• Property division. State law upholds the community property statute, so all your marital property must be evenly divided between you and your spouse in a divorce. Mediation affords the opportunity to reach more agreeable terms than a family court judge would deliver, such as potentially enabling you to avoid liquidating certain assets as you would in divorce litigation.
• Spousal support. Some divorces end with long-term financial agreements between the spouses, and the lower-earning spouse could receive alimony from the higher-earning spouse. The amount paid in alimony hinges on the difference between the spouses’ respective financial situations, and the time payments continue usually depends on how long the marriage lasted.
• Parenting plans. While you and your co-parent cannot reach any firm conclusions regarding child custody, child support, or any related issues in divorce mediation, your mediator can still help you and your spouse develop a proposal for a parenting plan. This allows you and your spouse to convey your goals and intentions to the judge, potentially spurring them to approve a more personalized custody order. However, it’s important to remember the final decision regarding custody in your divorce rests entirely in the hands of the judge.

Having legal counsel you can trust in divorce mediation means you will be fully prepared to address all of these issues with confidence and streamline your divorce proceedings as much as possible.

FAQs

Q: How Long Does Divorce Mediation Take?

A: It’s possible to complete divorce mediation in a fraction of the time that litigation would require. However, the speed with which mediation unfolds depends on how willing both spouses are to compromise. Some couples complete their mediation proceedings within a few weeks, while others take longer due to the spouses’ unwillingness to reach a middle ground. Your divorce attorney can provide an estimate of your divorce’s likely timetable.

Q: Does Mediation Let Me Avoid Family Court?

A: Almost every divorce filed in the state will entail some measure of litigation. Family court proceedings will be unavoidable for divorcing parents as a family court judge must resolve child custody in the divorce. The goal of mediation is to streamline your divorce as much as possible. If necessary, you can take an “a la carte” approach, resolving what you can through mediation before taking your remaining divorce-related issues before a judge.

Q: Do I Need an Attorney for Divorce Mediation?

A: The divorce mediator cannot provide you with legal counsel; they can only clarify legal statutes and help you draft your divorce order. While it is not a strict requirement that you hire legal counsel for divorce mediation, doing so will significantly improve the quality of your experience with the process and increase the chances of reaching the best possible results.

Q: How Much Does a Divorce Attorney Cost to Hire?

A: Most divorce attorneys will bill their clients by the hour, so the more time they spend working on a case, the more it costs their client. Some family law attorneys offer flat rates for specific legal services. Always clarify an attorney’s billing policy before signing a contract for their representation.

Q: How Do I Find a Good Divorce Mediator?

A: You and your spouse must work together to choose a mediator, and the mediator may not hold any conflicts of interest favoring either of you. In the event the two of you cannot reach a mutual decision, your respective attorneys may negotiate as your proxies and help you find the best mediator to handle your case. A divorce mediator is usually a current or former family law attorney.

The attorneys at Bickford Blado & Botros understand the complex financial issues you are likely to face in your divorce proceedings and the pressure you must feel when thinking of the long-term implications your divorce order will likely have on your life. Our team can help you approach this situation with peace of mind and confidence. Contact us today to schedule a consultation and find out how we can help you.

 

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