What Happens If Divorce Mediation Doesn’t Work?
Divorce mediation has become the preferred method of handling the divorce process in California and throughout the United States. Unlike litigation, which is very formal, daunting, and stressful, mediation provides a divorcing couple the opportunity to privately negotiate the terms of their divorce in a comfortable, low-pressure atmosphere under the guidance of a neutral mediator. This process is proven effective and allows divorcing spouses to save significant amounts of time and money on their divorce proceedings. However, the success of the mediation process hinges on the divorcing spouses’ willingness to negotiate.
It’s possible for divorcing spouses to initially agree to mediation only to later decide that they cannot reach mutually agreeable terms through this process. It’s also possible for one spouse to allow their emotions to overcome them, spurring them to demand a trial instead of taking advantage of the benefits of mediation. If you are preparing for divorce mediation or have already started the process, it is natural to worry about what might happen if mediation doesn’t work for your situation. However, several practical options can help you overcome this situation, and it’s possible to take advantage of mediation to an extent before moving to litigation to settle the rest of your divorce.
How Does Mediation Work?
When a divorcing couple chooses to try divorce mediation, they select a neutral mediator with no conflicts of interest favoring either spouse. This mediator guides discussions and keeps mediation sessions focused until the couple agrees on each item involved in their divorce. For example, California has strict community property laws that require divorcing spouses to split their marital assets 50/50 regardless of the reason for their divorce. Therefore, during divorce litigation, the judge would have the final say on how the couple must divide their marital property. This could include liquidating certain assets or selling property and dividing the proceeds evenly. In divorce mediation, the couple could potentially avoid these requirements and instead reach an agreement based on dividing property by value, allowing each to retain ownership over certain assets and properties.
Mediation only requires the willingness of the spouses to negotiate; they do not necessarily need to get along well for mediation to be an effective option. For example, the spouses could complete mediation without direct contact, using their respective attorneys as their proxies until they reach a mediated divorce agreement. Unfortunately, hot tempers and personal tension could prevent a couple from completing the mediation process.
What Happens if Mediation Fails?
If a couple cannot complete the mediation process for any reason, it does not necessarily mean that mediation has failed. It’s relatively common for divorcing couples to take an “a la carte” approach to mediation, settling what they can with private negotiations before moving to litigation to settle the rest of their divorce. In some cases, this method is unavoidable, namely in divorces between couples with children. For example, you cannot reach a child custody agreement in private mediation. You and your spouse can reach a mutually agreeable proposal for a custody agreement. However, you will still need to go to court to have a judge approve the proposal and ensure the arrangement suits the best interests of the couple’s children.
If you and your spouse reach an impasse in divorce mediation, there is no need to consider the process a waste of time. If you reach an item that you cannot settle through mediation, move to the next aspect of your divorce, and try to settle as much as possible before taking your divorce to court.
How Your Attorney Can Help
Regardless of how you choose to approach your divorce in California, having the right attorney on your side will make a significant difference in your experience and the overall outcome of the process. Your attorney can help you navigate the preliminary stages of divorce mediation, assisting with your financial disclosure, helping you determine your needs and ideal outcomes for each item involved in your divorce, and representing you in person during your mediation sessions.
If you and your spouse reach a point in mediation that prevents you from progressing further with the process, your attorney can then help you prepare for the transition to litigation. Divorce litigation is typically much more stressful and time-consuming than mediation, but if you have already essentially laid the groundwork for your divorce agreement with mediation, you do not need to worry about the time and expense of litigation as much as you would if you had proceeded directly to court.
Some aspects of your divorce may require litigation, even if you and your spouse are amicable toward one another and willing to see the mediation process through to a resolution. For example, if you need to determine child custody and child support, your attorney can help you negotiate a parenting plan in mediation before submitting the plan to a family court judge for review and approval.
It’s also important to remember that you may need to revisit your divorce order in the future due to changing life circumstances. The modification process allows a divorced individual to revisit the terms of their family court order and request reasonable changes if recent life events make it impossible or unreasonably difficult for them to continue abiding by the current terms of their family court order. For example, if you must pay child support and lose your job, you could petition for a reduced support obligation until your financial situation improves.
Seek Legal Counsel for Divorce Mediation in California
It’s natural to have concerns about the divorce process, even if you and your spouse are prepared to undergo divorce mediation. The attorneys at Bickford Blado & Botros have years of experience helping clients navigate the most complex California divorce cases, and we can apply this experience to your case. If you are preparing to divorce in California and need reliable legal counsel as you begin mediation, we can help. Contact us today to schedule a consultation and find out how our firm can assist your divorce proceedings.
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