Is Divorce Mediation Right For You?

By Dana L. Santos — Certified Family Law Specialist

What is divorce mediation?

There are generally two ways for parties to end their marriage in California. Parties can litigate their disputes through the court system, or they can enter some sort of dispute resolution process which takes place outside of court. With mediation, parties hire a neutral professional to assist in unwinding their legal issues in a cooperative, supportive environment.

Is mediation better than fighting in court?

When parties enter the court system to litigate their issues, in many respects they hand over control of their lives to their attorneys and to the court system. For some, this is the only recourse they have, such as when the party on the other side will not cooperate, there are extremely divergent ideas about child custody, or there is a substance abuse problem that must be dealt with in a more formalistic manner. When a decision has been made to terminate the marriage, and the parties are able to deal with one another in a reasonable way, mediation is far superior to the court system. Parents, not the court, make decisions about their children. Parties, not the court, make decisions about property and support. Ultimately, mediation allows parties to retain control, instead of ceding that control to others.

How does the cost of mediation compare with the cost of litigation?

Mediation is an extremely cost effective tool, as compared with litigation. When parties hire me to provide mediation services, they have choices and control over how their funds are spent. One option is to pay for a mediation package, which is $1750, and the other option is to pay by the hour. It is my experience that parties can have their divorce mediated from start to finish for anywhere from $1500 to $3500, depending on the complexity of the issues and the needs of the parties.

In comparison, litigation can be enormously expensive. It is entirely possible for a litigant to spend $3,000 on one support hearing. As both parties in litigation generally have attorneys, that’s $6,000 spent fighting on one issue, and the remaining issues in the divorce remain unresolved. It has been reported that the average litigated divorce in California is $40,000 per side. Even if a party spends half that amount, that is still a lot of money spent fighting, instead of spending that money improving their post-separation living standard, and the lives of their children.

Do children benefit if their parents chose divorce mediation over fighting in court?

Yes. When parties get divorced, there is the potential for great conflict when children are involved. Unintentionally, and sometimes intentionally, parties involve their children in their conflict. Parties who select mediation are pre-disposed to work on their parenting conflicts in the mediation, rather than exposing their children to conflict. Studies clearly show that children that are raised in supportive, respectful divorced households have much better outcomes than children raised in conflict laden divorced households. Children that are raised in an environment where each parent sees the other parent as the enemy are more prone to problems at school, drug and alcohol use, and having difficulties as adults in forming lasting, healthy attachments with intimate partners.

The first and most important goal in mediation that involves children is to establish cooperation and trust regarding parenting rules. While mediation is not a substitute for family therapy, and is never intended to “reunite” parents, divorce mediation is a powerful tool for assisting parties in establishing positive co-parenting relationships that last years after the divorce is over.

Do people fall out of mediation?

It is very rare, but occasionally parties fall out of mediation. In the 13 years I have been mediating, I have had one couple fall out of mediation and into litigation. Neither party can call the mediator into court to testify to what happened in mediation, as everything that is said or agreed to in mediation stays in mediation. If the mediation fails, the parties start at square one in court, and any agreements reached in mediation are abandoned unless otherwise agreed to in court.

Do you advise parties what is in their best interest?

No. I will provide an overview of the law, and I will provide code sections of the law to parties if they wish to read specific provisions. As the mediator, I am a neutral and my role is to assist the parties in obtaining their own agreement that meets the requirements of the law. I always recommend that each party consult with their own attorney, to advise them privately on their rights under California law.

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Ms. Santos is a Certified Family Law Specialist, certified by the California State Board of Legal Specialization. She practices in both Santa Cruz and Monterey Counties, and her website can be found at www.danasantos.com. e-mail: dana.santos@danasantos.com.