By Jeremy Masys

If you’re in the divorce process in California, thinking about divorce, or if it seems like your spouse is considering divorce, then there is a good chance you are considering mediation, even if you are not exactly sure what divorce mediation is.

Why? There are many reasons mediation is beneficial, but here a few of the basics:

• Spending several hours with a mediator to sort out your differences and work towards a settlement of your issues in your divorce can save you many thousands of dollars in legal fees that could otherwise go into writing up combative court filings, appearing in contentious court hearings, and so on.
• You can sort these issues out with your spouse and a mediator trained in the art of fostering agreement in a private room, without objecting lawyers, an intimidating judge watching over, and the peanut gallery of several dozen randos in the courtroom waiting for their own turn in the hot seat (again, all while your legal bill is going up hundreds of dollars per hour, even if your lawyer is just sitting there during another 11 or so cases called that morning).
• You and your spouse can get the divorce process moving at an infinitely faster pace than the litigation process of waiting weeks and months between every hearing, while your financial and relational future hangs in the balance (and while a new bill from your attorney shows up every month).
• The two of you can hopefully resolve your issues without being at each other’s throats any more than you might already be – which can often be an unfortunate and understandable (yet not at all necessary) byproduct of the litigation process – and this is a huge positive when you need to go on raising children together, or, at the very least, salvaging whatever friendship or at least semi-affirming vibes might still exist, even if the lifetime partnership plan didn’t go exactly as planned.

So if mediation is so great, why doesn’t everyone do it? Well, several reasons.

• Not everyone is honest or committed to playing fair in the divorce process, for starters, meaning the more sharp-edged tools of litigation are sometimes necessary.
• Sadly, emotions can go haywire in divorce, making compromise a challenge. While you don’t have to even like each other to have an effective mediation, it is helpful to all parties involved to have something other than the unending misery of your soon-to-be-ex as a primary goal in order to make mediation work.
• Lawyers tend to make a lot more money when spouses are willing to pour tens of thousands into their law firm’s coffers to conduct an all-out courtroom battle as opposed to settling things quickly in mediation, so not all lawyers will make meditation a priority when the possibility of a $50,000 or $250,000 legal payday is an option.

You can’t control what your spouse does (which I’m guessing you’ve learned by now if you’re reading this), but you can certainly explore the option of mediation and offer it up to your spouse as a mutually beneficial option for getting out of this thing with minimal bloodletting.

Which leads to the question – do you even need a lawyer if you’re going to do mediation?

My stock answer to any “do I need a lawyer” question is you never necessarily “need” a lawyer. You can represent yourself in court in any situation, short of being declared too insane to do so. But, of course, your relative results from doing so may not be great.

And, because divorce is, for most people who go through it, one of the most (if not the most) financially significant experience of their lives, not to mention the impact it will have on relations with your children, the idea of mediating a divorce without ever speaking to an attorney who can advise you personally at least once seems highly inadvisable. And potentially catastrophic.

It’s Hard to Mediate Well If You Don’t Know What Your Rights Are

A quick rundown on what exactly mediation is: in mediation, you and your spouse will attempt to create a Marital Settlement Agreement (MSA) which will address and resolve all of the issues in your divorce: spousal support (alimony), division of all property and debts, child custody and visitation, and child support.

You and your spouse can create this MSA on your own, which means you wouldn’t even need mediation, or you can go to mediation in which a mediator will use strategies to help you reach that MSA. The mediator won’t make the decisions for you, but might offer potential compromises or encourage the two of you to explore new options in the hopes of reaching an agreement.

But what you mediator will most likely not do is tell you what your rights are under the law. If you actually know what your rights are to, for example, spousal support, you are in a much better position to negotiate with your spouse and/or agree to a compromise offered by the mediator. If the mediator suggests an option by which you receive $1,000/month in spousal support for two years, but you had no idea you would be more likely entitled to something in the range of $2,500/month for five years, then mediation without a lawyer might not really be in your best interest.

Similarly, if your spouse is demanding $3,000/month in spousal support for three years, but you are not sure if he or she is entitled to anything (or even if they should be paying you), then you’re not going to be feeling great about making big decisions in the mediation process on your own.

Don’t Expect Your Mediator to Explain (Or Even Know) the Law

Last summer, I took a course at an LA community college on mediation. It met every Saturday for about five hours for four weeks. It cost less than $300 total. One other person in the class was a lawyer, but no one else had any legal training. We talked about some interesting strategies for helping people reach an agreement, watched some cheesy training videos from the 1990s, did some role playing exercises, and never once discussed how the law would actually fit into any given situation, or even what you might do to figure out what the law might be.

At the end, we were given certificates indicating that we were now mediators in California.

We didn’t even need the certificates. There is no licensing system for mediators in California. You want to be a mediator in California? Congrats, you’re now a mediator. Now go to Kinkos and get some business cards and fire up the Squarespace to create your new mediation services website.

I’m not joking. Certainly, there are incredible mediators, and specifically many wonderful mediators in the family law space who know more about family law than just about anyone else out there (and as a result may be wildly out of your price range). But there are also mediators out there who don’t have the faintest idea of what the law is regarding your rights to property, support, custody, and so on.

And, no matter what your mediator may or may not about the law, remember that they are not necessarily there to tell you what those rights are, or to even explain the basics of the law to you. Which, again, makes it tough to reach an agreement you can feel good about, when you don’t know what result you would get in court with a judge actually applying the law to your situation.

Mediators Are Seeking Agreement (But Not Necessarily Your Best Interests)

Why don’t mediators explain the law? As I was told in the mediation class I took, the job of the mediator is not to reach a fair result, it’s really just to reach a result. I don’t know that all mediators work that way, but the ethos of that course was that the one and only goal of a mediator is for the two parties to reach an agreement. Whether or not it is a good agreement for the respective parties was beside the point.

Certainly, not all mediators seek after an agreement at any cost, no matter how much it deprives one party of his or her rights and/or creates a crushing yet unnecessary result. But it is generally the case that a mediator is there to get you and your spouse to sign on the dotted line of something, not to reach best possible result under the law for you.

Mediating Is Just One Step (If That) of the California Divorce Process

At this point, I may need to remind you that, despite all the warnings given above, mediation is often an extremely beneficial alternative to litigation as a way of ending your marriage. Just as Winston Churchill declared democracy to be “the worst form of government, except for all the others,” for many people mediation is the worst way of resolving your California divorce matter, except for all the others.

But, even in the best possible mediation situation, understand that you are not going to walk into a mediation and walk out divorced. Hopefully, you can avoid going to a court hearing, but you will still need to complete and file a number of state legal forms, as well as serve financial disclosures on your spouse, before your divorce is final. And the information in the court filings and financial disclosures of yours and your spouses will likely serve as the basis for any well-mediated settlement. And that’s assuming that those documents have been filled out accurately and comprehensively, which can be assuming a lot.

And while we’re assuming things, this is also assuming the mediation process actually results in you and your spouse reaching a resolution of all of the issues in your divorce. Which I hope it does. But that is also a big assumption, to say the least.

All of which is to say that, while mediation can accomplish a lot in getting you to the finish line of a fair and finalized divorce, there may be a number of other aspects of your divorce for which you will need legal assistance.

Even Just One Consultation With an Attorney Can Vastly Improve Your Chances for Beneficial Mediation

Talking to an attorney about an upcoming mediation or the possibility of mediation does not mean you need to hire that attorney to represent you through your entire divorce. You can speak to an attorney for as little or as much as you’d like about the mediation without having that attorney be the attorney of record in your divorce.

Even just a single consultation with an attorney can help you understand:

• What potential range of results you could expect in court regarding your rights and obligations with respect to community property, spousal support, child support, custody/visitation, all with the intention of properly adjusting your expectations and goals for mediation
• What strategies you can use before, during, and after the mediation to get the results you desire
• What procedural aspects will be involved with turning the mediation into a Marital Settlement Agreement and finalized divorce
• Any other issues regarding the mediation process you want to understand

I provide by-the-hour consultation in addition to full and limited-scope representation in California family law matters. Contact my office to discuss your options and/or schedule a consultation.