Divorce mediation in California is a process for settling divorce cases outside of the family law court system. Both spouses must agree to privately mediate. Confidential meetings with a neutral mediator allow the couple to negotiate the issues in their case and create an outcome which is agreeable to both parties.
Unlike litigated divorces, where each party argues back and forth (usually through their attorneys), a mediated divorce is a non-adversarial process. The couple works together to make decisions on how they will divide their property and restructure their family moving forward.
The trained mediator (typically a family law attorney) acts as a neutral third party in the mediation to educate the divorcing couple about the law generally and about the divorce mediation process itself. The mediator will also assist them in creating a mutually agreed upon settlement.
According to a recent study by Divorce.com, the divorce rates in the United States are somewhat declining. American Community Survey’s reports show that the divorce rates have lowered fairly steadily since 2014.
For couples who do decide to divorce, a growing number are turning to mediation as the preferred method of dissolution. A 2021 study by Custody X Change found that more than half of all divorcing couples with children utilized mediation to settle their divorce. Interestingly, couples who used an alternative dispute resolution method for their dissolution, such as mediation, were almost twice as likely to rate their post-divorce relationship as positive when compared to those who did not. Utilizing mediation is also linked to an increase in achieving joint custody of the children.
According to a Divorceinfo.com study, up to 80% of mediated divorce cases are resolved successfully. Divorcing couples who mediate their divorces had a satisfaction rate with the process of 69%. In contrast, the satisfaction rate among couples who litigated their divorces in an adversarial process was 47%.
Divorce Mediation versus Litigation
In divorce mediation, the couple retains control over their case rather than putting it in the hands of the family law court system. The parties decide on the pace and scheduling and also which issues are their priorities. Typically, mediated settlements have a higher chance of long-term compliance because it is what both parties came to an agreement on. In litigated cases, the outcomes may be unpredictable.
The litigated process can be lengthy and time consuming. Scheduling conflicts and court delays often lead to extended waiting periods between hearings. And when matters are heard by judges, there is usually limited time for the issues to be raised and adjudicated.
In most cases, divorce mediation is a confidential process and personal matters will not be disclosed. The court system, by its nature, is public. All filings are a matter of public record and the details of your divorce case can often be found online. Divorce is intensely personal and coming to an agreement in a crowded courtroom is an unpleasant experience for most.
Mediation can also save costs when compared to litigation – usually between 1/10 to 1/3 of the total price, depending on the case. In litigation, attorney fees quickly accumulate, especially when court hearings are involved.
It is also important to note that the divorce mediation process helps to preserve the family on a holistic level. The emotional and mental toll of divorce can be mitigated through a mediated divorce as mediation promotes effective communication, compromise, and the crafting of an agreeable settlement. Litigation, by contrast, is often more stressful, tense, and adversarial.
Mediation versus Collaborative Divorce
Both divorce mediation and Collaborative Divorce are out-of-court, confidential processes by which to end a marriage, divide property, and restructure the family. Collaborative Divorce often utilizes a divorce team and can include a variety of Collaboratively-trained professionals – such as divorce coaches and financial, business, and real estate experts.
In the traditional Collaborative Divorce model, each party is represented by a Collaboratively-trained, experienced family law attorney who will advocate on behalf of their client. Financial professionals, typically forensic accountants and/or Certified Divorce Financial Analysts®, often assume a “neutral” role and provide the team with analyses of the current marital finances and what various settlements could mean for the financial future of each spouse. Some couples utilize a divorce coach in a neutral capacity as well, while others may decide to each have their own coach present at the meetings. A Collaborative Divorce affords the couple the opportunity to bring in any and all Collaboratively-trained professionals who could help assist them in achieving a settlement.
Mediation can also utilize a team approach, however the most commonly understood method of divorce mediation is to select a trained mediator to act as a neutral third party in the negotiations, usually a family law attorney. The mediator will educate the divorcing couple regarding the law and process, but cannot give legal advice or act as an advocate for either party. It is for this reason that many divorce mediators strongly encourage (or even require) that each party retain a separate attorney (also known as a consulting attorney) to assist them in negotiation strategies. At the very least, each party’s attorney should review a draft of the marital settlement agreement prior to its filing.
Financially-complex or high-net-worth divorces can benefit from an enhanced team mediation. As in traditional mediation, these cases are facilitated by a neutral mediator but will also bring in outside professionals and experts as determined by the couple’s particular issues. For example, if the couple owns a business together, it may be highly beneficial to bring in a business valuator who can help them to divide the business in a fair manner. In a divorce mediation where one party wants to reenter the workforce, the divorcing couple can agree to hire a vocational expert who can support the reentry process.
Benefits of Divorce Mediation
Most couples who choose divorce mediation as the method of marriage dissolution find it beneficial both during the divorce and post-divorce. Here are some of the commonly-cited advantages:
- The couple retains control over the outcome of the divorce
- Open communication and the opportunity to learn how to better communicate, thereby helping the couple as they move forward
- Privacy and confidentiality are maintained
- Cost-effective, especially when compared to a litigated divorce
- Greater likelihood of family harmony in the future
- Lowered stress and anxiety during a challenging time
- Higher chance of compliance with the settlement agreement
- Avoidance of spending time waiting for public courthouse appearances
Mediation Process – What To Expect During Your Divorce Mediation
While every couple’s divorce is unique, there are certain protocols which most mediations follow. First, you and your spouse will select a mediator together. If the mediator offers an initial consultation or a meet-and-greet, both parties need to be present. As discussed in detail below, you will want to choose a mediator who is well-trained, highly experienced, and has the ability to be calm and fair. It is important to select a mediator who you believe has the skills to guide you through the process and the creativity to help you draft a settlement.
In the past, divorce mediation meetings were typically held in-person and as a group. However in our new, virtual world, it is increasingly common for mediations to be held remotely. In online mediation, you and your spouse meet with your mediator in a virtual meeting room, such as Zoom. If one of you would like to speak with the mediator privately, you have the ability to do so in a breakout/private room – as long as both spouses agree.
If You are Considering Mediation, it is Helpful to Know What to Expect Throughout the Process
Here is a sample outline of how your mediation may unfold:
Initial Meeting
Once a mediator is selected, an initial, discovery meeting is usually set. During this meeting, the mediator may gather as much relevant information about the couple as possible – from their children to their income, assets, and debts. The mediator should also use this meeting to explain the hallmarks of mediation and what they can expect from the process itself.
Post-Meeting Paperwork
After the first meeting, the mediator will typically have each spouse complete paperwork before meeting again. This includes the Preliminary Declaration of Disclosures, which is mandatory in the state of California. Each spouse must complete an Income and Expense Declaration ( FL-150), Schedule of Assets and Debts ( FL-142), Declaration of Disclosure ( FL-140), and a Declaration Regarding Service of Declaration of Disclosure and Income and Expense Declaration ( FL-141).
First Mediation Session
After the preliminary disclosures are completed, the couple will typically have their first mediation session. At this meeting, the parties will discuss their goals and any pressing issues which require immediate attention – such as formulating a parenting schedule or ensuring bills continue to be paid.
Second Mediation Session
Third Mediation Session
Fourth Mediation Session
If needed, additional time will be spent reaching resolution on any remaining issues. There will be a review of the terms to be included in a draft settlement agreement, so that it can be executed at the final meeting.
Fifth and Additional Mediation Sessions – If Needed
If there are any unresolved issues, additional sessions may be scheduled, particularly if there are multiple professionals on the divorce mediation team. Likewise, the complexity of the mediated case and emotional overtone may result in additional sessions. Minor issues may need to be addressed through the Marital Settlement Agreement drafting process, which your mediator will begin once all issues are resolved.
Many clients schedule a session to review the marital settlement agreement terms before they bring the agreement to their independent consulting attorneys for review.
The Signing of Final Documents
Once the Marital Settlement Agreement is drafted and approved, the couple will then sign and notarize their final documents and return them to their mediator. The judgment packet must be filed with the court in their jurisdiction.
How Long Does the Divorce Mediation Process Take?
As evidenced in the outline above, the length of time to complete mediation varies based on the number and nature of the case’s issues, as well as the couples’ ability to effectively work together to create a settlement. Some couples decide not to rush and are careful to take their time in coming to a resolution. Others are eager to get the process completed. There is no one size fits all rule. You are allowed to move at your desired pace. As a general rule, the typical divorce is shorter in duration than the typical litigated divorce.
On average, divorce mediation in California is completed within four to six months. It is not unheard of that couples start and finish the entire process within eight to twelve weeks, but that is not the norm. And, of course, some mediations last much, much longer. Keep in mind that courts in California will not issue a divorce decree until six months after the divorce petition is served – no matter how quickly you may move through divorce mediation.
What Do the Costs of Divorce Mediation Look Like?
The cost of divorce mediation in California varies depending on a variety of factors including, but not limited to, the jurisdiction of the case, the experience and skillset of the mediator, and the complexity of the divorce.
Mediations tend to cost between $5,000 on the low end and $30,000 on the high end, depending on the size of the estate and its complexities. Contrast this with the average cost of a litigated divorce in California which is $26,300 with children and $17,500 without children, according to the latest FindLaw.com study. In Los Angeles County, it is not uncommon to see emotionally and financially complex cases costing well into the six figures.
As a general rule, you can expect a significant savings of your money, time, and emotions when choosing divorce mediation over litigation.
How To Properly Prepare for a Divorce Mediation
Divorce mediations work best when the couple is prepared and willing to work together. Here are the steps to take to help the divorce mediation process run as quickly and smoothly as possible:
1. Get Your Documents in Order
Gathering all pertinent documents can seem daunting, but it is an important step in divorce mediation. Some examples of the paperwork you should gather are all financial documents (including but not limited to bank and savings accounts, credit card statements, retirement and stock accounts, federal and state tax returns, and life insurance policies) and all documents relating to business ownership if applicable (such as copies of corporate tax returns and partnership agreements).
You will also need to provide information on any real property (such as your primary residence and any other real estate you own), vehicles (cars, boats, etc.), loans taken out (including student loans, bank loans, and personal loans), and personal property (jewelry, art, or collectibles) with significant value.
Legal documents such as your marriage certificate, pre- or post-nuptial agreements, and estate plans (trusts, wills, etc.) should also be included.
Throughout the mediation, the mediator may ask for additional documents to assist the parties in reaching a fair settlement. Providing paperwork in a timely manner will help the process move forward.
2. Set Your Priorities and Goals to Accomplish in the Agreement
Each spouse should create a general idea of their own priorities and what they are looking to accomplish during the mediation. For some, retaining the marital home or spending more time with the children are of utmost importance. For others, retain ownership of a business is critical.
It is also a good idea to create a post-divorce budget. To do this, begin with listing your current income and expenses. Be realistic with what is essential and what is discretionary. After you create your budget, keep track of what is actually coming in versus what is going out. Being detailed will help you in spousal support discussions.
If you have children, make sure that protecting their emotional well-being is a top priority. If both you and your spouse make this a common goal, creating a co-parenting plan can be much less contentious.
3. Be Open to Forming Comprises
After you set your preliminary goals, you should also give consideration to what you are willing to exchange in order to meet them. This is commonly known as “horse trading.” Are you comfortable with receiving less of the investment accounts in lieu of keeping the home? Is it possible to buy your spouse out of their ownership interest in a business?
Investopedia.com defines negotiation as “a strategic discussion intended to resolve an issue in a way that both parties find acceptable.” In successful negotiations, both parties will feel that they achieved some of the things they wanted but didn’t get everything. Being able to give and take is essential to mediation.
How to Find A Divorce Mediator
Choosing the right divorce mediator is critical to a successful divorce mediation. Deciding upon a mediator together is also the first agreement the spouses will make during the process, so it is an important step. There are many factors to consider when selecting a mediator. Here are some of the most important to keep in mind:
1. Geographic Location
Be sure to find a mediator who practices in your state – even when doing an online mediation. Divorce laws are unique to each state and your mediator should have extensive knowledge of the family law code in your particular jurisdiction.
2. Education and Training
Most divorce mediators are also practicing family law attorneys, but a law degree or even an area of specialization is not enough to guarantee a great mediator. Your mediator should have completed extensive mediation and alternative dispute resolution training, both inside and outside of a classroom.
Confirm that, in addition to completing basic classes, your mediator is continuing with ongoing mediation training. Looking for a mediator who has a mix of both legal and alternative dispute resolution education is a great place to start.
3. Mediator’s Experience
Find a mediator who exclusively focuses on family law matters and has facilitated mediations for a substantial period of time. Divorce mediation requires expertise and a thorough understanding of the complexities of divorce, as well as the skills necessary to handle the delicate nature of the process.
4. Excellent Listening and Communication Skills
A good mediator will not simply listen, they will actively listen. Active listening is more than hearing what is said; it includes making an effort to understand the meaning and intent behind what is said. You can tell fairly quickly if a mediator is skilled in active listening. They will paraphrase what you said and reflect it back to you with ease. They will also be adept at asking open ended questions which will prompt further discussions.
5. Trust
In order for divorce mediation to be successful, both parties must trust their mediator. They should feel that their mediator respects and understands each of them, without taking sides. The couple should connect with the mediator both personally and professionally.
In order to establish trust, the mediator should create a space in which you both feel comfortable having an honest dialogue. The couple should feel safe to express themselves and their individual objectives without bias or judgment. A connection with and an empathy toward both spouses is critical.
6. Creative Problem Solver
The ability to creatively resolve conflict is an attribute of good mediators and a necessary ingredient in any successful mediation. A mediator should be able to guide the parties into “thinking outside the box” when it comes to potential options for settlement and offer ways of looking at each issue from the other person’s perspective. Hire a mediator who is skilled at offering alternative possibilities and outcomes that you and your spouse may not have considered.
Considering Mediation? Get in Touch With an Experienced Divorce Mediator in California
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 result. 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.
Sources:
- Divorce Statistics in California (divorce.com)
- American Community Survey – United States Census Bureau
- Statistics: Hire a Divorce Attorney for the Best Custody Outcome (custodyxchange.com)
- Does Divorce Mediation Work? (divorceinfo.com)
- How Much Does a Divorce Really Cost in California (findlaw.com)
- Negotiation: Definition, Stages, Skills, and Strategies (investopedia.com)