Divorce mediation is an out-of-court, non-adversarial process that differs significantly from traditional divorce litigation. In litigation, each party retains a family law attorney, except for those who choose to be self-represented. The attorneys will then “battle it out” in negotiations. If they cannot reach an agreement, court hearings will be held where the couple’s fate is left in the hands of a judge. Litigation, by its nature, is adversarial and often combative.
Divorce mediation, in contrast, allows the couple to retain more control over their case. Clients will have a series of meetings, which are facilitated by a neutral divorce mediator, in an effort to reach a settlement. Divorce mediation allows the parties to retain control over the outcome of their case, rather than leaving it up to the family law courts to decide. The goal of mediation is to reach an agreement that is satisfactory to both spouses.
Why Couples Are Choosing Divorce Mediation Over Other Methods
Litigated divorces can be extremely expensive. According to a 2023 article by Forbes, the average cost of a divorce in the United States is $15,000 – $20,000. Depending upon the state in which you reside and the complexity and/or contentiousness of the case, it is not unheard of to see legal fees soar into the six-figure range. In California, litigation fees generally exceed $100,000 per client for Ventura and Los Angeles Counties, with many LA cases costing over $500,000 per client.
In addition to costs, litigated divorces are often lengthy and emotionally draining. Families and other relationships may be damaged by the division between the couple. With staffing shortages post-pandemic and frequent judge turnover, many courts are backed up and it may take months just to get a hearing date.
Many couples choose mediation over litigation to save time and money, as well as to limit the emotional damage a divorce can cause. In divorce mediation, the spouses set the pace and determine which issues need attention in order to be resolved.
A study conducted by the Center for Divorce Mediation found that the mean length of the adversarial divorce process was significantly longer than the mean length of the mediated divorce cases – specifically 325 days to 245 days, according to their research. Even more significant is the reduction in the frequency of post-judgment modifications – 22% in litigated cases and only 9% in mediated cases. This statistic illustrates the fact that when a couple works together to settle their case, they are less likely to attempt to change their agreement at a later date.
In addition to saving time, money, and emotions, the confidential nature of mediation also helps to make it an attractive choice when deciding upon the process of divorce. The meetings are held privately and there are no hearings in courtrooms – which are open to the public.
The popularity of online/virtual mediation has also increased in recent years, due to Covid-era concerns. Instead of in-person meetings, mediation sessions can be held via Zoom and attendees can join from any location where they have an internet connection and webcam. While Covid restrictions have relaxed significantly, many couples still appreciate the ease and convenience of online meetings.
How Does Divorce Mediation Work?
The first step in divorce mediation is to select a mediator. This is a key point in the process as the couple will work together to choose who they believe will best help them resolve their case. When deciding upon a mediator, both spouses should feel comfortable and trust that the person they choose will remain fair and neutral.
Once a mediator is retained, the couple will then participate in a series of joint meetings where the issues of the case are negotiated and, hopefully, resolved. The mediator will also require that each spouse complete the required documents such as petitions and financial disclosures. At any point in the mediation, outside experts such as financial experts and divorce coaches can be brought in to assist in the negotiations.
For a detailed outline of the mediation process, please read, “The Process of Divorce Mediation in California.” This article provides a complete overview of what you can expect during your mediation sessions.
Preparing for Divorce Mediation
One of the keys to a successful mediation is preparation. Couples who enter mediation ready, willing, and able to come to a mutual settlement have a much better chance of reaching that agreement than those that do not. At Zonder Family Law Group, we find that most clients who sign up for mediation in earnest are likely to settle their case. Here are some tips to help you and your spouse prepare for divorce mediation:
Set Your Intentions Prior to First Meeting
Prior to beginning mediation, each spouse should have a rough idea of what they would like to accomplish during the process. Perhaps child custody is foremost on each spouse’s mind. Maybe retaining the family home or business is a top priority. Setting realistic goals and having an idea of what you need to reach a settlement is important.
Likewise, it is also crucial to have an idea of what you are willing to compromise. While you may want to stay in the house, perhaps you are open to selling it if it makes financial sense. Being flexible and open to compromise will help to facilitate an agreement.
If you are unsure of what your post-divorce goals should look like, it may be beneficial to do some pre-mediation work with a divorce coach. A divorce coach is a trained professional who can help you identify the issues to address during your mediation, and also help you chart a course for your post-divorce life. Coaches can be an invaluable resource as you move through the divorce process. Zonder Family Law Group has available a complementary law related divorce and life coaching business known as Divorce Clarity Coaching LLC.
Remember Mediators Are Neutral and Loyal to Both Parties
Mediators are neutral third parties and do not advocate for either party or act as their divorce attorneys. The mediator’s job is to educate the spouses about the mediation process and the law (in a general way) and, of course, to help them facilitate or create a mutually agreed upon settlement. Your mediator should not and cannot “take sides.”
One of the important factors to consider when selecting a divorce mediator is their impartiality. Both spouses should feel comfortable with the mediator and that he or she is understanding and empathetic toward each of them. In order for divorce mediation to be successful, both parties must trust their mediator and should connect with them on a personal and professional level.
Bring in Legal Counsel if Necessary
Many mediators strongly encourage (and sometimes require) that both parties retain individual counsel. If one of the main reasons why you chose mediation was to save money on lawyers, this might sound alarming. However, hiring a family law attorney to consult with you during mediation does not mean you’ll be racking up a huge legal bill. Many couples use consulting attorneys sparingly and, sometimes, just to review the draft of the settlement agreement.
A consulting attorney can assist you in the negotiation strategy, offer legal advice, and help you to advocate for yourself. Your attorney can also advise you on the long-term impact of various settlement proposals, as well as make sure that any final settlements are in your best interest. Utilizing an attorney in this manner is both cost-effective and can prevent you from making serious mistakes. The mediator is prohibited from giving specific legal advice and should not be looked to for specific legal advice.
Collect All Necessary Documentation
Divorce is a legal process that requires the completion of various forms and documents. Throughout the mediation and especially at its onset, your mediator may ask for specific paperwork in order to best facilitate your case. As a general rule, both spouses should gather and obtain copies of all documents relating to the financial aspects of your case. This includes but is not limited to, all banking and credit card statements, tax returns, investment accounts, mortgage documents, business and real estate holdings, and life insurance policies. Any legal documents such as prenuptial or postnuptial agreements, as well as any estate plans, should also be provided.
Gathering these documents will assist you in preparing your financial disclosures, which are required by California law for each spouse to complete. If your case is financially-complex, your mediator may suggest you retain the help of a financial professional, such as a forensic accountant or a Certified Divorce Financial Analyst®, who is skilled in the financial aspects of divorce. Timely production of any documents requested by your mediator will help your case to move in a more expedient timeframe. The mandatory financial forms must be exchanged by the clients. Each client is entitled to the material facts and information needed to make an informed decision about the financial issues in the case.
Clearly Communicate with the Other Party
In order for mediation to be successful, both parties should commit to open and honest communication. It is important that you work together to not only talk effectively but to be able to listen effectively as well.
If communication is an issue for you and your spouse – and it likely is – that does not mean the mediation is destined to fail. Your mediator should be able to facilitate a healthier method of communication between the two of you. Do not be afraid to ask for help if you feel that you are struggling to communicate properly.
When meditating, there are a few tips to help you communicate more effectively. First, try to avoid blame or judgment. “You” statements should be replaced with “I” statements. Attacking the other party can lead to negotiations stalling or shutting down completely.
Next, remember to focus on what your spouse is saying, rather than planning on what you will say in response. You should rephrase what you heard back to them before you make your next statement. This is known as active listening and is very effective in making sure that neither person is being misconstrued or misinterpreted.
Finally, make sure your emotions are in check. While it is not difficult to become anxious or agitated during mediation, work to stay balanced. If you or your spouse are struggling to keep emotions under control, utilizing a divorce coach or a mental health professional in the sessions can be beneficial.
Remember Compromise Might Be Necessary
As discussed above, flexibility and compromise are important in any successful mediation. Neither party should expect to get everything they want or to feel as though they “won” once the mediation is over. Instead, the goal of mediation is to reach a settlement that is satisfactory to each spouse.
In almost every divorce, there is a certain amount of give and take. For example, maybe you will keep the house but your spouse will get more of the retirement accounts. Perhaps your spouse will have less physical custody of the children, but they will take the child deduction when filing income taxes. This is a negotiation technique commonly known as “horse-trading.”
Couples are given fairly wide latitude on how to resolve most of the issues pertinent to their divorce. There is a well-known story about the difference between what each client demands and what their interests are. The story is about a lemon. Each spouse demanded the lemon with justification. However, the mediator discovered that one client wanted the lemon for one purpose and the other wanted the lemon rind. Cutting the lemon in half or giving the lemon to one client rather than the other would not have been the creative solution.
Your mediator should help you uncover creative settlement options which will ultimately work for both parties. Keep an open mind and stay flexible. What you thought you had to have when you began mediation may not necessarily be what you will find you need.
Don’t Rush the Process
In many divorce mediations (and divorces in general), there is a tendency to want to complete the process as soon as possible. Divorce, even under the best of circumstances, is stressful and challenging. However, it is important to fight the urge to end the discomfort and rush to get it over with.
Mistakes are often made in haste. It is better to be thoughtful and intentional about your decisions than to make mistakes, agree to terms you are uncomfortable with, or overlook important aspects of your case. Racing to the finish line can leave permanent irreversible damages and is considered one of the five biggest mistakes in divorce. Once an agreement is finalized, it is very difficult – if not downright impossible – to change the terms of your settlement post-divorce. If you struggle with the timeframe of your divorce, a divorce coach can work with you.
Your mediator should be able to help you set an appropriate pace for the mediation if that is something you and/or your spouse are struggling with. However ultimately, the timeframe is up to the couple.
Is Divorce Mediation Right for Your Situation?
Not every divorce case is a good candidate for mediation. While a rarity, it is not unheard of for one spouse to attempt to mediate in the hopes of preventing the other spouse from “lawyering up” and asserting their legal rights. Be cautious if you suspect your spouse may want to mediate in order to put you at a disadvantage or to try to control or manipulate the process. Here are some common examples of situations that could preclude a couple from meditating:
Significant Power Imbalance and/or High Volatility
If one of the spouses feels that they cannot express themselves or advocate for themselves, they may not be comfortable utilizing a divorce process that emphasizes open communication between the parties. Likewise, if you and your spouse are simply unable to communicate without a high amount of conflict, you may not be able to reach a settlement through mediation.
A marriage that involves ongoing physical, emotional, or financial abuse is likely not right for mediation. Many mediators will decline cases where a domestic violence restraining order has been issued or where there is a history of neglect and/or abuse of the children.
If you believe your spouse is hiding assets or attempting to avoid disclosing their complete financial picture, mediation may be difficult. Forensic accountants may be used in mediations where “tracing” (determining which assets are separate property and which are community property) is difficult, but it is critical that each spouse is honest with their financial statements. If there is any concern, the mediation client who needs further information may request additional information within the mediation context. If not provided voluntarily, it may signal the need to exit mediation.
Active Addictions/Substance Abuse
If one or both of the spouses is actively abusing alcohol or other substances, mediation may be difficult, if not impossible. Calm, sober judgment is an essential component of mediation and addictions can cloud one’s ability to think clearly – even if they are not intoxicated during the negotiations.
Serious Mental Health Issues
Undiagnosed and untreated mental health issues can also preclude a couple from mediation. Even in the most amicable divorces, there will be a strain on the couple’s mental and emotional health – even more so on those that have a significant mental health issue that has not been addressed by a professional.
Can Mediation Work for High-Net-Worth and Financially Complex Divorces?
Due to mediation’s (generally) lower cost when compared with litigation, some people erroneously see it as an inferior process. However, this is not the case and many high-net-worth couples find mediation a much better approach to settling their cases than litigation.
Dividing assets in high-net-worth and financially complex divorces is often complicated and time consuming. Couples can spend tens of thousands (if not hundreds of thousands) of dollars litigating how to split their estate. A disputed high-net-worth divorce may involve dozens of court appearances and hearings. And, regrettably, knowing the couple has access to significant funds may encourage some attorneys to engage in a lengthy battle which may cost the couple both their time and a significant portion of their resources.
An experienced, skilled mediator will have an extensive network and be equipped to help the couple build a “divorce team.” This is known as an “enhanced mediation” and the team can include professionals in the financial (such as forensic accountants, business valuators, and Certified Divorce Financial Analysts®), mental health, and child custody sectors. In fact, your team may include any professional who will assist you and your spouse in reaching a fair and mutually agreed upon settlement.
As mentioned above, mediation also offers privacy and confidentiality – which can be very important to high-net-worth and high-profile couples. In court, hearings and documents produced (which may contain sensitive and/or private information) are, by and large, available to the public. Mediation sessions take place in private meetings and the documents produced are also confidential. Your family’s privacy is protected.
Why Hiring a Divorce Lawyer to Serve as a Mediator or Divorce Mediation Consulting Attorney Can Be Beneficial
Many divorce mediators are also attorneys who specialize in family law. While your mediator cannot give legal advice, choosing a mediator who is well-versed in the family law code is very beneficial. Part of the mediator’s role is to educate the couple on how the law works (in a general way) and provide insight as to how a court may rule on a particular issue. Family law attorneys who are also experienced mediators usually have a strong knowledge of current divorce laws and judicial opinions.
Similarly, you should not choose a mediator who is an experienced family law attorney but does not have a proven track record of mediating cases. The ability to successfully mediate cases is a special skill and even though an attorney may have an impressive legal resume, it does not mean they will be a good mediator. The ability to communicate effectively and facilitate a fair resolution while maintaining neutrality is also necessary.
When choosing a mediator, look for someone who has a strong background in both the law and in alternative dispute resolutions. They should also have a commitment to ongoing education and training in both disciplines. Ideally, your mediator should be an expert in both the law and mediation.
If you have already selected a mediator and wish to have a consulting attorney who will support your mediation, you can retain Zonder Family Law Group to serve as your consultant. This is known as a limited scope mediation consultant. You can work with us to prepare a settlement strategy with back up options. If you have already agreed upon terms with the aid of the mediator, we can review your agreement.
Contact Our Divorce Attorneys for Your Divorce Mediation
It is important to consult a knowledgeable divorce mediator to help make a decision that works for you and your divorce case. Finding a family law attorney who has extensive experience in mediation is critical. If you would like to learn how our office can provide guidance on any California family law issues you are facing in Los Angeles, Ventura, and Santa Barbara counties, contact the Zonder Family Law Group office today at 805-777-7740. Don’t wait to start the next chapter of your life.
Our attorneys are licensed in the State of California. We do not handle any matter outside of California. Testimonials or case results do not guarantee you will get the same or similar results. None of the information, testimonials, case results, or information is a guarantee, warranty, prediction, or assurance regarding the results that may be obtained in your case. Every case is dependent on its own facts. These materials have been prepared for general informational purposes only and are not legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship.
- How Much Does A Divorce Cost In 2023? – Forbes Advisor
- Study of outcomes in Mediated and Adversarial Divorces – Center for Divorce Mediation (center-divorce-mediation.com)
- The Essential Guide to Divorce Mediation in California – DivorceNet