Divorce Mediation

Going through a divorce can involve a wide range of disagreements, but you may be able to resolve your issues out of court by working with a professional divorce mediation service.

At California Arbitration & Mediation Services in Inland Empire, CA, we have more than a decade of experience helping individuals deal with issues like asset division and child custody and support. Our fully licensed, bonded, and insured services are designed to get you through this difficult situation as smoothly as possible.

For many years, whenever the word “mediation” was used in the context of family law, parties (and even sometimes, lawyers) cringed. The problems with the process related to the term “mediation” in family law cases are many. This short essay will address but a few and will happily announce the slaying of the boogeyman.

Mediation is a special process designed to help disputing parties arrive at a resolution of whatever may be in dispute without having to resort to public trials, open hearings, the incredible costs of litigation and the overwhelming inconvenience and confusion the court system presents. Unfortunately, many years ago someone decided that in every family law case in which there were children, the matter must be “mediated” by a “mediator” who works for the Family Court Services (“FCS”). This intention was good. It was created to try intended to remove the drama and uncertainty from the issues surrounding child custody and visitation. The problem is there was little resemblance between FCS “mediation” and actual mediation.

The professionals in FCS–who have worked hard to provide a service to the public–have been dreadfully overworked. In spite of being trained in the concepts of mediation, the demands upon them and the time constraints inflicted upon them by the sheer number of family law litigants eventually transformed the process into one of dissatisfaction and sometimes outright trauma for the parents. True mediation takes time and requires the voluntary participation of the parties. Since FCS was mandated in all cases involving children, FCS mediation was never voluntary. In counties where the FCS mediators made recommendations to the courts describing what the mediator believed was the custody and visitation arrangement, the confidentiality and sanctity of mediation was nonexistent. If a parent attended FCS mediation involuntarily and then had no opportunity to have his or her story heard and understood by the overtaxed “mediator,” sometimes frustration with the process translated into a lack of cooperation or a poor attitude when the report from the FCS mediator made its way to the Judge. The result was the perceived stripping of the due process rights from the family law litigants.

The parties could reject the recommendation of the FCS mediator but just as Family Court Services are overburdened, California bench officers (judges and commissioners) in the family courts suffer with overwhelming caseloads and calendars that are unmanageable. A recent study indicated that the average time a litigant (all of the cases filed and heard in a one-year timeframe divided into the number of Family Court hours available to those litigants) would have before a judicial officer in the entire course of his or her case was something around twenty minutes, TOTAL. On a day in Family Court in which the bench officer must hear as many as 40 cases between 8:30 a.m. and noon, one can see how limited the time might be. Even the most conscientious judicial officer may occasionally rely too heavily upon the recommendation of the FCS mediator. I am told that in some courts there is a 95%, or more, probability that a bench officer will adopt the FCS recommendation in whole or in substantial part notwithstanding objections by the litigants. Add to this the fact that the vast majority of family law litigants are self-represented without the experience or wherewithal to challenge such a recommendation at trial, one should be able to see that the word “mediation” in family law settings is not well received by the parties.

Fortunately, beginning in 2012, the California courts no longer refer to the FCS process as “mediation.” As of January 2012 the process is known as Child Custody Recommending Counseling (CCRC). There is no longer any suggestion this process is mediation.

So, what's the difference?

Mediation is a process by which a trained neutral party assists litigants or disputants (mediation is used in the wide variety of disputed matters) to find a resolution to their dispute on their own terms. Because most of the parties in a family law case are self-represented, mediation is particularly critical. Except for “user-friendly” courts such as the small claims courts, the court system is a bewildering labyrinth of forms, rules, law and procedures that creates distress even in well experienced attorneys. People without the assistance of an attorney almost always run into legal barriers that may seem insurmountable. Without some type of guide through the system, substantive rights may be forever lost because the individual does not understand the process.

When a couple decides to dissolve their marriage and turns to a complete stranger (the Family Court judge) to make life-changing decisions the parties are unable or unwilling to make on their own, they are taking serious risks. Family Court judges work hard to rule in the best interests of the parties and, particularly, the children in a divorce. However, given the small amount of time they have to devote to each case in the overwhelming number of cases they have to consider, not surprisingly, they frequently make rulings devastating to one or even both parties. A Judge once addressed a couple in which one of the spouses was accused of being unfaithful. Allegedly, that conduct went on for many years before the victim spouse discovered the lie. During heated argument over who was telling the truth on a particular issue, the judge looked at the victim spouse and said, “It took you 20 years to figure out that your spouse was lying to you. Do you expect me to determine who’s telling the truth as between the two of you in the five minutes we have?” Obviously, most courtrooms are not the ideal place for the revelation of truth or, even, the presumption of justice.

Family Law mediation involves a well-trained mediator experienced in family law, the courts in the area and, ideally, has some sense of the temperament and tendencies of the family law judges. The keys, however, are formal mediation training and experience coupled with solid family law experience. In order for mediation to be efficiently productive, the parties (the disputing spouses) must want a resolution of their case. If all of those elements exist, a skilled mediator can resolve the case.

Because family law, at least in California, is “form-driven” with many statutory requirements (individual laws affecting the divorce), a mediator experienced in family law is essential if he/she will be successful in assisting the parties to reach a resolution and have a judgment entered. While mediators do not provide legal advice nor do they provide any “advocacy” to the mediating parties, it is always helpful for the mediator to know the procedures required in the local courts because unless all of the “I’s and T’s” are appropriately treated, cases can get stalled when a judgment is submitted for signing (the Judgment is the document that divides the property, identifies and resolve child issues, defines child and/or spousal [alimony] support and acts as the instrument that records the dissolution of the marriage or the divorce). An experienced Family Law Mediator can identify and provide limited assistance with the required court forms and procedures.

When parties submit their cases to a Judge the parties lose any influence they may have over the outcome and, we can say with firm assurance, those outcomes are often-times devastating to at least one of the parties.

Unlike submitting a dispute to a judge, when parties opt for mediation and want to resolve their case, they can fashion a resolution that will become a judgment that meets their needs as they define those needs through negotiation and compromise. Most people understand that divorce is a “negative sum” proposition. What that means is that the divorcing spouses (and the children) are almost never as well off financially after as they were during the marriage. However, by mediating a family law case, the parties can mitigate and control the negative outcome and work with the mediator to find resolutions that will meet the needs of the parties, rather than the system—and all without having a grumpy judge growling at them! Ideally, parties who turn to mediation to resolve their family law matters will never have to see the inside of a courtroom or see a judge. The PARTIES will make the decisions for their own lives.

Private Family Law mediation is not free, but it is cost effective and efficient. Typically, even the most complex meditations cost the parties less than simplest cases that go to trial. If the parties choose mediation and cooperate with the mediator and the process in getting their case resolved, the case will be done in days or weeks as opposed to months or years in the courthouse and at a cost that is a fraction of what it would be to try the case.