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.

HOW IS CHILD SUPPORT DETERMINED and HOW FLEXIBLE IS IT? by Barney Connaughton, Esq., Mediator

How is Child Support Calculated?
In California, when the Court is asked to make a decision regarding child support it is required to set the support amount using an algebraic formula commonly referred to as “guideline child support.” The formula considers the number of children, the income of each parent, and the percentage of time the children are in each parent’s care. Computer programs have been designed to make the algebraic calculations considering the tax situation of each parent, as well as the deductions from each parent’s income for such things as health insurance, union dues, mandatory retirement and other support obligations. In a case where the Court is asked to decide the issue of child support the Judge is not allowed to deviate from the guideline amount unless there are special circumstances. Costs for daycare expenses related to the employment of the parties as well as unreimbursed medical, dental, orthodontia, counseling and prescription drug costs for the children are added on as support in addition to the indicated guideline amount.

Are There Any Alternatives to Guideline Child Support?
Couples can reach agreements to a child support amount that is greater or less than the guideline amount. For the Court to accept such an agreement the couple is required to acknowledge their right to have support set by guideline, that their agreement is in the best interest of the children and will allow each parent to adequately meet the needs of the children. If child support is set in a sum less than the guideline amount, the receiving parent can later petition the Court to have the amount increased to the guideline level which the Court will do given the mandate to order support consistent with the state guidelines.

How Does Participation in Divorce/Paternity Mediation Affect Child Support Calculations?
Mediation gives the couple flexibility regarding the setting of child support. They may choose to stick to a guideline level of support, or they may look at the needs of each household and come up with a level of support that focuses more on how each of their needs can be best met. Guideline child support provides the Court with a quick mechanism to set support. Unfortunately, this level of support may either be unrealistic to the parent obligated to pay or insufficient for the supported parent to meet the needs of the children. Looking at all the circumstances of the couple rather than just the inputs that the guideline calculations call for, can aid in making a support decision that is best for the whole family.

What Does "In Pro Per" Mean? by Tim Bischel, Esq., Divorce Mediator

The law often uses archaic terms with which most people are not familiar in divorce proceedings. One of the most common terms, In Pro Per, appears on most court filings in divorce cases in San Diego. In Pro Per, or more specifically In Propria Persona, appears after the heading “Attorney For:” and literally means “for one’s self.” In Pro Per is used in California when a person acts as his/her own attorney in a legal dispute.

Filing In Pro Per does not mean you are limited in any of your legal rights, only that you are representing yourself in the proceeding. Many people choose to file In Pro Per for a variety of reasons, chief among these is cost.

Can parties who are In Pro Per get help from professonals?
However, just because you are taking responsibility for your own legal case does not mean that you cannot get significant assistance from a legal professional. NCRC offers mediation services which help people who are filing In Pro Per navigate and complete their cases. Depending on the level of assistance needed, a mediator can walk you through step by step each issue in a divorce or simply help you with the forms and court procedures in a single session.

Beyond NCRC many legal professionals are more than willing to bill you for a few hours of their time in order to explain forms, run support calculations, or work for you on a task by task basis without formally representing you in the case. So if you are filing In Pro Per, don’t think that you have to do everything by yourself. Different degrees of help are available to you as you navigate through the legal system.

COMMUNICATION TIPS FOR DIVORCE MEDIATION CLIENTS by Robin Seigle, J.D., Director, NCRC Divorce Mediation Services

Many clients going through divorce mediation are concerned about their ability to speak up and negotiate for themselves in mediation, especially if they perceive the other person to be more vocal, more assertive, and/or more knowledgeable about their finances or the law. On the other hand, they know they are likely to have a better outcome if they can come to agreements in mediation rather than leaving the decision for a judge in court. A “win” in court might be an overall “loss” when factoring in the legal costs, the time involved, and the acrimony that can be created by having indirect communication, i.e. through the attorneys, where the message is altered as it passes from one person to the other.

Mediation is a “facilitated negotiation,” Despite the client or clients’ hopes that the mediator will tell the other person that their view is incorrect, the mediators assist the parties to reach their own conclusions about what is workable and acceptable in their case. They do provide information about the laws relating to divorce, including division of assets and debts, spousal support, child support, and how they share the time with their children. They will tell the parties what they “could” do, not what they “should” do.

Questions to ask the Mediator during mediation
There are questions the parties can ask the mediator to help them better understand the alternatives, including the range of what might happen if the parties did not agree and took their issue to court to be decided by a judge. Here are some examples:

1. If we do not come to an agreement in mediation and take this issue to court, what might a judge order? Is there a range of possible outcomes? If so, what is that range likely to be?

2. How have other couples handled this?

3. What are the potential long term effects or consequences of one approach or another?

4. How does ________’s living with a (girl or boy)friend affect the support amount that would be awarded?

Worry and fear is not uncommon for divorcing couples, and it often leads to ineffective communication.
Divorce is a stressful time. When people are worried or afraid, they often say things to their spouse that sounds combative (“Why should you get any of my retirement, I earned it!”) or threatening (“Well, I’ll just quit my job and then you won’t get anything!”). When there is a disparity in income, especially when it is a long marriage, both parties are concerned about their ability to have enough money to continue in the lifestyle in which they have been living. The trick for communicating in the above examples is NOT to react to the statement itself, but to think about what is “behind” it. What sounds hostile, might be based on fear. Responding in-kind just escalates the conflict and rarely gets the couple to a place of resolution.

Be Strategic
· Think about what you would like the other person to do.
· Think about the way you can say it so the other person can “hear” it.
· Approach him/her based on how he/she is, not how you would like him/her to be.
· Be prepared to give him/her something that he/she wants, so that he/she will give you some of what you want.
· If the other person’s initial reaction to a proposal will be “no,” give him/her time to think about it before responding.
· Say “no,” if you don’t agree or ask for more time to consider the proposal.

Reflect back the other’s feelings:
*I understand that that is what you would like.
*I can hear that you don’t think you should have to share your earned assets with me.
*You would like assets to be divided according to the pro rata share we contributed.
*You wish this wasn’t a community property state.
*You would prefer not paying spousal support.
*You don’t think it is fair that I am entitled to a portion of your retirement.
*It sounds as if you are concerned that you won’t be left with enough money to live comfortably.
*After hearing a proposal that you would not agree to:
oYou would like it to be that way, and if I agreed, it could be that way. However, I am not willing to agree to (e.g. that amount of support because I want to receive the guideline support amount).
o We can discuss your proposal among others at the next mediation session

Effective communication can be difficult any time there are differences, and especially during the divorce process, but it can be practiced. Write down some of these tips on an index card and keep it in your notes to refer to while you are at the mediation session. Keep in mind, too, that it is not only what you say but how you say it that affects how it is heard.

WHAT IS A FAMILY COURT STATUS CONFERENCE? by Shawn Skillin, Esq., Mediator

Once you have filed for divorce, the Court sends out a “Notice to Appear” for a Status Conference. The Status Conference date is generally scheduled for 3-5 months after the Petition for Dissolution is filed.

Both parties or their attorneys (if they have them) are required to appear for the Status Conference. The Judge checks in with the parties to see what is happening in their divorce. If you are represented by attorneys, they will give a brief report to the Judge and then may ask for certain deadlines to be set regarding discovery or other procedural issues. Your attorneys will bill you for the time they spend in Court for this conference as well as for any waiting time they may have. While a Status Conference is brief, generally 5-10 minutes, your attorney may have to wait his or her turn to be called.

If you do not have attorneys, you are sent out to meet with a representative from the Family Law Facilitators office. They will try to figure out what you need to do next to move your divorce along to final judgment. The Facilitator can’t give legal advice and can only guide you in the proper direction. The Court will then give you another date to come back and check in again. Eventually, if you are not making progress the Court may set your case for trial. You should plan on spending 3-4 hours at Court.

Will the Judge Make Any Decisions About My Case?
Whether you have an attorney or not, the Judge does not make any substantive decisions regarding your case at this conference. The Judge just wants to know: are you in mediation, will you need a trial, do you have an attorney, and if so, are the attorneys moving the case forward. The Judge will not make decisions about child support, spousal support or custody and visitation at this conference.

What Happens If I Don't Show Up?
It is important that you attend the conference if you do not have an attorney. If you and your spouse do not show up, the Court will usually send you a second Notice To Appear. If you miss the second Status Conference the Judge can dismiss your case, assuming that you no longer wish to get divorced. This means you may have to start from scratch and pay filing fees again and start over with your 6 month waiting period.

If I'm in Mediation, Do I Have to Go?
In mediation, we file an agreement telling the Court that you are in mediation. The Court then postpones the Status Conference for a period of one year. This gives you an entire year from the date you file your Petition to get everything done and filed with the Court. If you finish within that one year period you should never have to go to Court!

Do Both Parties Have to Agree to Use Divorce Mediation? by Robin Seigle, J.D., Director, NCRC Divorce Mediation Services

In order for a couple to use NCRC's Divorce Mediation Services, which are private and confidential, both parties have to agree to use the service. NCRC cannot force anyone to come to mediation.

Occasionally, a Family Court Judge, with agreement by the parties' attorneys, will send a case to NCRC for mediation. Otherwise, everyone else who attends a mediation session does it voluntarily.

Examples of situations where one party does NOT want to come to mediation and strategies for addressing them :

Issue 1: Where one party does not want the divorce at all, he or she doesn't want to make it easier for the other party to get the divorce.

Strategy 1: A person can get a divorce even if the other person does not want it, i.e. they both don’t have to want the divorce, in order for one of them to get it. If the case goes to court, rather than mediation, the person who doesn’t want the divorce will likely be put into an adversarial situation where the opportunity to demonstrate cooperation is more difficult or non-existent. Neither person has control over the timing of court hearings and less control of the decisions.
In mediation, both parties have a role in determining the timing of the process, as well as the outcome. When they are able to work together cooperatively, it might lead the person who wants the divorce to “re-think” whether divorce is the preferred outcome.

Issue 2: Where one party doesn't want to spend the money.

Strategy 2: Mediation is much less costly than a litigated divorce. Generally, mediation costs between $2000 and $5000 total (shared by the parties). If one person is concerned about spending money, the other party can agree to pay for the first session and if at that point the other person agrees to continue, they can agree to share the costs. Or, one person pays for the mediation and it can be equalized through the division of property in the settlement.

Issue 3: Where one party feels that the other has an advantage over him/her due to having more knowledge or more ability to speak up and negotiate for him/herself. Sometimes one party does not feel comfortable attending mediation witout the assistance of an attorney.


Strategy 3: Where there are information or personality style imbalances, the person who feels disadvantaged can do what it takes to bring him/herself up to the level of the other person. They can do so by seeking out advice from experts (attorneys, financial planners) outside of mediation or by bringing those consultants with them to the mediation. NCRC allows parties to bring attorneys with them to mediation as long as the other person does not object.

Issue 4: Where there is a history of domestic violence and one party is afraid of the other.

Strategy 4: Mediation requires both parties to speak up for themselves and make decisions based on their assessment of their respective best interests. If someone is afraid of another party and makes decisions because of that fear, mediation is not the best place for them. We never want anyone to agree to something because they are afraid not to agree.

So even though NCRC cannot “force” someone to come to mediation, we can help you strategize how to get them to agree to try it.