Mediation and Other Options
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San Diego Family Court Judges favor mediation over litigation in all divorce cases. However, mediation is a vague term that can cover several different options for the divorce client.
Mediated Divorce:
A ‘mediated’ divorce usually involves only one attorney, a mediating attorney, which the parties will jointly retain to help them put their agreements in writing. The mediating attorney’s job is to guide the parties through the divorce, incorporating their agreements into a written Marital Settlement Agreement. The mediating attorney also answers their questions and advises them on community property law and on custody and visitation issues.
A mediated divorce is an excellent option in cases where:
- Husband and Wife are generally in agreement on property division, and child sharing; and
- Both Husband and Wife have a realistic understanding that divorce is a ‘give and take’ situation, and each is willing to compromise as needed.
A mediated divorce is usually not a good option in cases where:
- Domestic violence issues or a temporary restraining order exist;
- Husband and Wife are not in agreement on important issues, such as spousal support, custody, and visitation of the children;
- Husband and Wife are not willing to compromise on issues; and
- One spouse has a much stronger personality and is more capable of pressuring the mediator, knowing the other spouse will ‘give in.’
Litigated Divorces and Mediation:
All cases going through the court system are encouraged to attempt mediation, either privately or through the court system. Typically, the parties will need to litigate an issue that might be difficult to mediate, such as spousal support. After a period of litigation, often the parties will work with their attorneys and a mediator to resolve the remaining issues. This can be an excellent option, as the parties have the benefit of having their own attorney who advocates their position, yet can achieve mediated ‘results’ without incurring the expenses of going to trial.
Collaborative Law:
Collaborative law is designed to help divorcing parties in a high conflict situation resolve their issues. Husband and Wife each have their own attorney, and a mental health professional and financial expert are also involved. Although people who have gone through this process have reported success, the down side of collaborative law is that if the case becomes litigated, the parties must retain new attorneys. Additionally, the hourly rates of two attorneys, a mental health professional and financial expert can be cost prohibitive to many couples contemplating divorce.
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