CAN WE USE NCRC’S DIVORCE/FAMILY LAW MEDIATION SERVICES IF WE HAVEN'T DECIDED WHETHER TO STAY TOGETHER, SEPARATE OR DIVORCE?

by Robin Duboe Seigle, Director, NCRC Divorce Mediation Services

Because NCRC’s program is called “Divorce Mediation Services”, many people assume that to use it, they need to have already decided to get divorced. With the current tough economic times, couples who might be thinking about or wanting to get divorced are not sure that they can afford to live in two separate households. Others have issues about their shared finances and want to separate them, but wonder if they have to get divorced to do that.

NCRC’S DIVORCE/FAMILY LAW MEDIATION SERVICES CAN BE USED TO HELP YOU DECIDE WHETHER TO STAY TOGETHER, SEPARATE, FILE FOR DIVORCE or LEGAL SEPARATION and/or TO EXPLORE SPLITTING FINANCES WITHOUT SEPARATING OR DIVORCING.

The role of NCRC’s Divorce/Family Law Mediators is to assist the couple to discuss ANY issues or concerns they have (whether married or not) about staying together, separating, initiating the legal family law process, staying in the same house, separating their finances, etc. The role of the mediator is to provide legal and practical information, as well as to facilitate the discussion so that it can be very productive and without “fighting”.

Mediation is a good way to work together to determine in which direction you want to proceed. Sometimes, after couples meet with a mediator, they decide to try counseling, a trial separation, or other alternatives.

Please call 619-238-2400 extension 220 or 223 for further information. Trissan Maleskey or I can help you explore whether our services will be appropriate for your situation.

Divorce Mediation vs. Litigation by Bill Eddy, LCSW, Esq., Divorce/Family Law Mediator

Over the past 25 years, many couples have turned to divorce mediation instead of litigation in Family Court, because it minimizes animosity and provides more control over the divorce process. Today, in this time of economic distress, even more people are seeking to use divorce mediation, primarily because it saves them money.

How Decisions Are Made
In Family Court litigation, the decisions are made by a judge based on the California Family Code and Court of Appeals decisions. Many decisions are clear cut (child support and property division), regardless of who has done what. Other decisions (spousal support, custody and visitation) are very discretionary, so that different judges might reach different conclusions. The main point in litigation, is that decisions are made based on broad legal standards which may have nothing to do with your specific situation. The job of the parties and their attorneys, if any, is to argue over the past and reasons for favorable future court orders. Litigation promotes conflict, then resolution, and sometimes more conflict in the future because of the stress it places on the parties.

In Mediation, the parties are the decision-makers. The parties are informed of basic California Family laws, but then they are allowed to vary from the standards and make agreements which fit their specific situation. For example, a judge in court cannot usually deviate from the Child Support Guidelines, but parents (once they are informed about the Guidelines) can agree to other amounts. Property division can be shaped to fit the needs of the parties, such as delaying the sale of their home in this bad economy. Spousal support can be structured to pay more now and less later, or vice versa, or a lump sum buy-out may be made, if the parties agree. At court, all a judge will do is order a monthly amount and the parties will need to come back to court someday to change it.

The Overall Cost
In divorce litigation, each party often retains an attorney who will be responsible for presenting their case to the judge in Family Court. Family law attorneys typically charge $250-400 in San Diego County. A retainer is commonly between $1500 and $5000 – for each party. The overall cost may be up to $40,000 or even $400,000, depending on the assets of the family estate and the number of issues the judge will need to decide. Lawyers may need to do discovery (depositions, subpoenas, demands for documents, etc.) and legal research. Much time is spent preparing papers for court hearings and waiting around at court.

In divorce mediation, the cost is typically between $2000 and $5000 -- depending on the complexity of the issues involved and the level of disagreement of the spouses. While a mediator may also charge $250 per hour (as we do at NCRC), the number of hours is significantly less than in litigation, because most of the time is spent making decisions with the parties. Proposals and agreements can be made with both parties and the mediator present to discuss them right away. Unworkable terms can be discarded or refined very quickly. In litigated divorces, settlement proposals take time to go back and forth between the parties’ attorneys and themselves. Since most litigated divorces are resolved by agreement anyway (often at the courthouse at the last minute), it makes sense to have the parties assisted in working together throughout the process.

Also, in most divorce mediations, you pay for each mediation session at the end of the session. Then you pay for the preparation of court papers before each document is prepared. With this approach, parties can proceed with the divorce at the same pace as their finances allow. For example, after some parties have made all of their decisions, they decide to wait a month or two before paying to have the Marital Settlement Agreement prepared.

Sharing the Cost
Usually, each party pays one-half of the cost of the mediation. However, there are also many cases in which one party agrees to pay all of the cost, or a higher percentage than the other. In some cases, one party pays for the mediation as fees are incurred, then gets reimbursed for one-half in the final property division.

In litigated divorces, the cost is often driven by one party -- who can force deadlines for discovery and hearings on the other party. This drives the other party's costs upwards.

Fear and Anger
Much of a litigated divorce is driven by one or both parties' fear or anger. This may be because of an affair, bad financial decisions, substance abuse, or other issues which caused mistrust. However, in mediation emotions can be calmed so that decisions can be made, while using a consulting attorney to advise the client, examine financial documents, and review the Marital Settlement Agreement to protect the client's interests. This is much less expensive than taking the whole case to court because of fear or anger.

Inexpensive To Try
Since divorce mediation is a pay-as-you-go process, there is little financial risk in attempting to use it even if you are skeptical. At worst, you might spend a few hundred dollars on mediation and end up in court anyway. However, 80-90% of cases that go to divorce mediation usually finish in mediation. In that case, you may save yourself tens of thousands of dollars.

Can a Couple Participate in Divorce Mediation if One of Them Lives Out of Town? by Robin Duboe Seigle, J.D., Dir., NCRC Divorce Mediation Services

Divorce mediation is a facilitated negotiation which requires the participation of both people, but they do not have to be physically in the same room. Mediation can work if one is with the Mediator and the other person participates by speaker phone, or with both parties participating in a 3-way conference call.

If at all possible, it is advantageous for both people to attend the first session (or at least one session) in person so they can develop a rapport with the mediator. However, we have worked with clients where one or both people lived in another county or state and did not have the ability and/or financial resources to commute to San Diego. They (and the mediator) may miss the benefit of seeing the facial expressions and body language of the other person, but it can be overcome. Cases with one or both people participating by telephone resolve as often as the cases where both people are present.

Sometimes, even local couples will choose to have some of their sessions in a 3-way conference call for convenience when scheduling is difficult.