Settling your divorce financial settlement or child custody dispute outside of court does not mean you are engaging in Divorce Mediation.
Most Divorce cases resolve outside of a court room through 4-way settlement conferences, Collaborative Divorce proceedings or formal settlement proposals via letters between legal counsel. Mediation is a process where a Neutral facilitator guides a couple through decision making around legal, emotional and financial issues that must be resolved in a divorce.
The Superior Court of California’s website defines mediation as “a confidential, non-binding process in which a trained mediator facilitates communication between disputants and assists parties in reaching a mutually acceptable resolution of all or part of their dispute. The mediator is not the decision-maker and does not resolve the dispute — the parties do. However a mediator is often able to more fully explore the parties’ underlying interests, needs and priorities. Mediation is a more flexible process, which is less formal and may reduce the time and costs that are often associated with a trial.”.
I like the definition so I will dissect some key pieces below to help individuals and couples Navigating Divorce Mediation.
- “Confidential” – Divorce Mediation is a Confidential process. The process is kept Confidential thanks to statutes enacted in the State of California that create the concept of the “mediation privilege”. The privilege is a set of rules providing that statements made during a mediation are confidential. Nothing said nor written during a mediation or for the purpose of a mediation can be compelled into evidence or testimony in any court proceeding without the express written consent of both parties. This Confidentiality is part of what makes up the Safe Container in Mediation. Parties can speak freely and negotiate in good faith without concern that their attempts to compromise and settle their dispute will later be used against them in court.
- “Non-binding” – Results of a settlement discussion during a mediation are not binding on the parties unless reduced to writing and entered with the court. You can reduce an agreement to writing during a mediation session and have it signed before leaving in order create an enforceable agreement. This is known as a 664.6 agreement.
- “Facilitates” – A mediator is a facilitator, not a decision-maker. There should be no expectation on behalf of the parties that a mediator will make decisions for them. Rather the mediator is there to inform the parties of the items they may want to discuss in settlement discussions and guide conversation to help both parties explore their interests and goals for the process. A mediator should avoid giving advice or telling the clients how it is. I will personally offer guidance based upon my experience in hundreds of divorce cases but avoid giving advice to couples when I act as a mediator. A mediator who offers guidance risks their role as a neutral being compromised if the advice they give is seen as one sided so it is better not to offer advice to the individuals. I do offer advice as to how to most effectively facilitate a stated goal once a couple agrees on a common goal.
Divorce Mediation has become a household term over the last 20 years. Google the term Divorce Mediation and you will get dozens of results for lawyers some mental health professionals, a few Financial Professionals and even some with no professional qualifications purporting to offer Divorce Mediation. Misunderstanding the Divorce Mediation process, the intentions of the parties engaging in the process or hiring an unqualified mediator usually results in failed mediation.
The confidential and non-binding nature of the mediation process often leaves couples with nothing to show for the thousands of dollars in fees and months of effort. For these reasons it is of paramount importance that couples and individuals do their homework before opting into Divorce Mediation and hiring a particular mediator. Start by calling Wellspring Divorce Advisors first.