Mediation for Divorce: A Good Alternative

Terrance Heath

I often get approached in social settings by colleagues with friends and associates whose marriages are dissolving. “Boy, they really could use an attorney; but they insist on doing it themselves. It’s just a mess!” they tell me. 

by Terrance Heath, CA Family Law Attorney

We’re all aware of the reasons why, in the face an unknown and confusing divorce process, people would choose not to see an attorney. Attorneys are simply perceived as too expensive and potentially poisonous to an already traumatic and sad situation.

At a time when a helping hand seems necessary, legal assistance appears more and more out of reach.

Mediation…An Excellent Alternative

I recommend to my colleagues that they talk to their friends about the benefits of mediation as a means of resolving their divorces and moving their lives forward.

Using an attorney as a problem-solver instead of a problem-maker can actually improve the process for the divorcing couple, cutting stress and costs.

Couples must remember that divorce is a legal process—one they must go through in order to end their marriage. The process of dissolving a marriage was not designed to be easy.  And it was designed for lawyers to navigate through, not the parties themselves.  

Litigation is supposed to operate to ensure that both parties have an opportunity to be heard and are treated fairly under the law.  But we all know that, all too often, it is simply too inefficient, too expensive and too taxing on one’s soul. 

Mediation can Ease the Emotional and Financial Burden of Divorce

A successful mediation will avoid a drawn-out fight and ensure neither party sees the inside of a courtroom. A qualified mediator can help parties comprehend the process and ensure that both remain involved and that neither is sidelined.  

The mediator keeps the process directed toward resolution, thus ensuring efficiency and keeping down costs. In turn, parties gain greater control over the process, less constrained by procedure and what a court might decide.

The Legal Requirments of  the Mediation Process

There are a few requirements concerning what the mediation process must look like.

1.  It must be voluntary, meaning both parties must agree to it.

2.  Both parties must be allowed to terminate the mediation process at any time and take their dispute resolution in a different direction.

3.  With little exception, the process is confidential and, in accordance with California Evidence Code § 1119, what is said and done in a mediation cannot be used in court against either client.

4.  Also significant is that, under California law, anyone can act as a mediator, not just an attorney. In fact, the parties may choose a team of mediators to help them reach their agreement. For instance, in addition to a qualified family-law attorney, they might bring in a financial advisor to assist in property distribution or a mental-health professional to assist in child custody.

5.  In addition, the parties may split the cost of paying the mediator or “mediation team” in any way they choose—although, for parity’s sake, it is usually recommended they split the cost evenly.

Always Have the Final Agreement Reviewed by an Attorney

I always recommend that each party seek the assistance of an independent attorney in simply reviewing their resulting agreement.

This is crucial to protecting the parties since the mediator has not been hired to protect the legal rights of the parties; instead he or she has been hired to assist the parties in reaching an agreement.

Despite using attorneys to review the agreement, mediation remains a significantly more efficient option than bringing in attorneys to litigate.  And it goes without saying that its a much better option than avoiding professional assistance altogether.

For parties who would otherwise choose lawyers to litigate, this means a significant cost savings.  For all parties, this might mean a significant reduction in additional stress and upheaval during an extremely difficult time in their lives.

Terrance Heath is a  is a graduate of UC Berkeley and Boston College Law School.  He is a partner at Heath-Newton and specializes in family law.

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