Mediation
Merriam-Webster defines ‘impasse’ as ‘a predicament affording no obvious escape’. From financial disagreements to different parenting styles, even the most reasonable people can have difficulty finding solutions on their own. Our professionals have extensive training to open doors, previously closed, to get you where you want to be, today and into the future.
What is Mediation?
In mediation, a neutral professional, or a team of neutral professionals (“Co-Mediation”), assist individuals in co-creating solutions to a dispute. By focusing on interests, goals, and concerns, couples have the tools to create solutions tailored to their unique situation. Couples have the opportunity to consider aspects that are often missed or not included in the adversarial process, such as:
- Tax implications;
- Children’s college education;
- Trading assets/debts that are of greater concern for one spouse or the other, instead of an exact equal division; and/or
- Creative parenting plans that limit or expand flexibility.
In short: you have more control over the outcome of your divorce when you mediate.
When is Mediation Appropriate?
People in conflict can choose mediation at any time. It is often advisable to call in a mediator before filing a petition or complaint, and it is also common to try mediation after the court case has been opened.
People in mediation are most likely to reach a complete resolution when they:
- Want to resolve (even if they have different ideas on the outcome);
- Are willing to commit the time and funds to retain the necessary professionals, gather the necessary information, and have the necessary (and often, difficult) discussions;
- Are able and willing to share even sensitive information and documents;
- Are open to considering options for resolution beyond their own;
- Value future relationships, with their children, each other, and those affected by the dispute, above “legal entitlements”; and
- Share common goals such as privacy, the well-being of their children, and having a voice in their outcome.
Mediation may not be appropriate when:
- There is continued physical and/or emotional abuse by one person against the other, or threats of physical harm;
- The sole goal of one or both parties is to minimize their legal costs;
- One person is not willing to share information or have necessary discussions;
- There is continued drug or alcohol abuse;
- One person is hiding or liquidating assets.
What Does the Mediation Process Look Like?
Every mediator has a different style and approach to mediation. Generally speaking, mediations take place over a few hours per meeting or even full day meetings. The meetings can be held with all participants together in one room or separately. Your mediator may prefer a facilitative approach, guiding your discussions, a transformative approach, impacting future behaviors and relationships, an evaluative approach, providing an opinion on the merits of your position, or a combination of these approaches. Depending on the style of the mediator, mediation sessions can be conducted primarily in joint session where all involved are present and communicate directly, or in caucus style, where the parties remain in separate rooms, or through a combination of approaches. Mediators can be evaluative, by providing an opinion of the merits of each person’s position, facilitative, in which they mainly guide the discussions, or transformative, in which they try to expand each person’s views of the conflict, or a combination of these approaches.At the Law & Mediation Offices of Diana L. Martinez we use a combination of approaches, starting with facilitative and transformative. We strongly encourage, and in some circumstances require, a team approach as the most efficient process for most situations:
- Divorce coach therapist(s) and/or Neutral Family Specialist to begin managing heightened emotions and unproductive communication.
- Neutral financial professional (NFS) to prepare a comprehensive review and analysis of your financial estate, goals, and impact of various outcomes.
- Legal mediator to prepare all necessary legal documents and facilitate resolution of any urgent/interim concerns.
1st Meeting
- Goals, Roles & Process Plan
- Agreements & Concerns
- Petition, Response, Financials
- Tasks and Target Dates
Meeting(s) with:
- Family & Communication Therapists
- Neutral Financial Specialist
- Legal Professional(s)
- Identify Key Elements, Questions, and Options for Resolution
2nd+ Meeting(s):
- Complete Financial Disclosures
- Temporary Agreements
- Review and Confirm Options for Resolution
- Drafting MOU or Final Agreements
Mediation Agreements Are Binding
Agreements reached in Mediation, when prepared in proper format and signed by both parties, are fully enforceable as if they were orders made by the Judge. When filed with the court as a “Stipulated Judgment” or “Marital Settlement Agreement”, the agreements are signed by the judge, thereby making them official court orders. Any documents you sign during mediation can be used in court. This includes your financial disclosures and interim or temporary agreements. It is important to understand what you are signing.
Mediation Benefits
In mediation, the emphasis is on each person’s interests more than their positions. For this reason, while it is important to understand the likely outcome in court, the outcome in a mediation often reflects other interests that a court would not consider, such as certain tax implications, cash flow concerns, and relationship healing/recovery. In mediation, the parties control the outcome and work to create value for all involved, including children and grandchildren. Studies since the 1970s have consistently shown that divorcing couples who resolved through mediation tend to avoid court hearings even when future disagreements arise, recover faster from the emotional trauma of the divorce or separation, tend to have better co-parenting relationships with each other, and tend to have better relationships with their children as a result when compared with similar cases that resolved through more adversarial processes.
Mediation Risks
Mediation is not a magic pill. Your mediator will not solve your disagreements for you (act as a judge) and will not act as your individual legal advisor. If you do not have a consulting lawyer, you run the risk of making important legal decisions without a full understanding of your individual legal rights. You may agree to something less or different than what a court would have ordered. As a neutral, your mediator cannot force you or the other person to act or stop certain behavior. If either person is not cooperating, or the mediator sees any abuse of the process or that resolution is not possible, while s/he may attempt to correct the problem, if the problem persists, the mediator will terminate the process. Since mediation is confidential and the mediator is a neutral participant, s/he cannot share the reason for termination and cannot later testify as to who was at fault for the termination of the mediation process.
What Does the Mediation Process Look Like?
Every mediator has a different style and approach to mediation. Generally speaking, mediations take place over a few hours per meeting or even full day meetings. The meetings can be held with all participants together in one room or separately. Your mediator may prefer a facilitative approach, guiding your discussions, a transformative approach, impacting future behaviors and relationships, an evaluative approach, providing an opinion on the merits of your position, or a combination of these approaches. Depending on the style of the mediator, mediation sessions can be conducted primarily in joint session where all involved are present and communicate directly, or in caucus style, where the parties remain in separate rooms, or through a combination of approaches. Mediators can be evaluative, by providing an opinion of the merits of each person’s position, facilitative, in which they mainly guide the discussions, or transformative, in which they try to expand each person’s views of the conflict, or a combination of these approaches.
At the Law & Mediation Offices of Diana L. Martinez we use a combination of approaches, starting with facilitative and transformative. We strongly encourage, and in some circumstances require, a team approach as the most efficient process for most situations:
- Divorce coach therapist(s) and/or Neutral Family Specialist to begin managing heightened emotions and unproductive communication.
- Neutral financial professional (NFS) to prepare a comprehensive review and analysis of your financial estate, goals, and impact of various outcomes.
- Legal mediator to prepare all necessary legal documents and facilitate resolution of any urgent/interim concerns.
1st Meeting
- Goals, Roles & Process Plan
- Agreements & Concerns
- Petition, Response, Financials
- Tasks and Target Dates
Meeting(s) with:
- Family & Communication Therapists
- Neutral Financial Specialist
- Legal Professional(s)
- Identify Key Elements, Questions, and Options for Resolution
2nd+ Meeting(s):
- Complete Financial Disclosures
- Temporary Agreements
- Review and Confirm Options for Resolution
- Drafting MOU or Final Agreements
Mediation Agreements Are Binding
Agreements reached in Mediation, when prepared in proper format and signed by both parties, are fully enforceable as if they were orders made by the Judge. When filed with the court as a “Stipulated Judgment” or “Marital Settlement Agreement”, the agreements are signed by the judge, thereby making them official court orders. Any documents you sign during mediation can be used in court. This includes your financial disclosures and interim or temporary agreements. It is important to understand what you are signing.
Mediation Benefits
In mediation, the emphasis is on each person’s interests more than their positions. For this reason, while it is important to understand the likely outcome in court, the outcome in a mediation often reflects other interests that a court would not consider, such as certain tax implications, cash flow concerns, and relationship healing/recovery. In mediation, the parties control the outcome and work to create value for all involved, including children and grandchildren. Studies since the 1970s have consistently shown that divorcing couples who resolved through mediation tend to avoid court hearings even when future disagreements arise, recover faster from the emotional trauma of the divorce or separation, tend to have better co-parenting relationships with each other, and tend to have better relationships with their children as a result when compared with similar cases that resolved through more adversarial processes.
Mediation Risks
Mediation is not a magic pill. Your mediator will not solve your disagreements for you (act as a judge) and will not act as your individual legal advisor. If you do not have a consulting lawyer, you run the risk of making important legal decisions without a full understanding of your individual legal rights. You may agree to something less or different than what a court would have ordered. As a neutral, your mediator cannot force you or the other person to act or stop certain behavior. If either person is not cooperating, or the mediator sees any abuse of the process or that resolution is not possible, while s/he may attempt to correct the problem, if the problem persists, the mediator will terminate the process. Since mediation is confidential and the mediator is a neutral participant, s/he cannot share the reason for termination and cannot later testify as to who was at fault for the termination of the mediation process.
Mediation is Confidential
Limited Court Filings and Private Discussions
With limited exceptions, documents filed with the court are public record:
- Petition and Response Documents – The documents required to open your divorce case;
- Financial Disclosure Documents – Including your pay stubs, bank statements, retirement plan statements, and tax returns;
- Declarations in support of requests for orders – Statements used to persuade the judge to rule in your favor;
- Orders and Judgment documents – Orders made by the judge after your hearing/trial or based on your agreements.
Nearly anything filed with the court is available to the public, sometimes online or by visiting the courthouse. At the Law & Mediation Offices of Diana L. Martinez we minimize court filings to the bare requirements, keeping as much of your financial and personal information as confidential as we can, protecting it from:
- Your children;
- Your neighbors;
- Your employer;
- Your creditors; and
- The press.
This is a great benefit for our high profile, high asset, and financially sensitive matters, and to all of our clients who prefer keeping their income information confidential.
Mediations are governed by strong confidentiality rules to keep your discussions private. Unlike in court hearings, which are open to the public, mediation allow couples to be:
- Transparent as to personal and financial concerns and goals;
- Open to considering a variety of options; and
- Sincere and (gasp) even caring and apologetic.
Mediation gives you a voice in your outcome
Your Voice and Your Choice
You are the CEO of your life. In our mediation processes, we strive to help you make informed decisions based on your goals for yourself and your family. Your judgment is created by you and your spouse/partner, with the help of your professional team. A judge, who knows only what is legally relevant, will not tell you how much time you will spend with your children, how much you will pay or receive in support, or how you will allocate your assets and debts. YOU will tell the judge how all of this will be handled. You, and your spouse/partner, that is. The only way to cross this bridge is to work together.
Mediations Solutions without Going to Court
“No-Court Divorce”
Every divorce case in California requires court-processing – That doesn’t mean you have to physically appear before a judge. With the rare exception of a status conference or family case resolution conference, our couples never set foot inside a court room. How does Mediation keep you out of court?
- Agreements to cooperate – Cooperation is key;
- Discussing any needed/desired action that my impact either of you financially or in terms of access to your minor children/ dependent adult children – no unilateral actions;
- Open and transparent conversations (confidential) to create better understanding not only of the law but of your own goals and concerns;
- Materials to help you self-regulate, communicate, and prepare to make informed decisions;
- Tasks and target dates to complete those tasks;
Agreements prepared on the required judgment documents so that they are legally binding and fully enforceable.
To help keep you out of court and making progress, at the Law & Mediation Offices of Diana L. Martinez, our divorce clients receive a confidential digital Mediation Book that includes:
- A Mediation Timeline
- Professional Tips for an Efficient Divorce Process
- A Cost Inflators Worksheet
- Financial Worksheets
