Divorce Mediation: What It Is and What It Ain't

One of the greatest challenges to the mediators here at Liaise Divorce Solutions is educating the public as to what exactly mediation is and dispelling myths as to what it is not.

In a nutshell, mediation is at root a “supported conversation”. The parties that have a disagreement in need of management sit down in a neutral location with a professional communications expert, also known as a “mediator”, and systematically work through the issues between them. In a divorce situation the mediator is known as a “divorce mediator“. The goal of the mediation is to arrive at a contract that sets forth all the agreed-upon terms and conditions the parties have negotiated. This agreement becomes the basis for a “stipulated” judgment.It is known as a stipulated judgment because the parties are telling the judge this is what we have pre-agreed you should Order.

Many people confuse “mediation” with “arbitration”. Arbitration is essentially the same as going in front of a judge. It is an “adversarial” proceeding. The difference is that an arbitrator is a private party that the disputants have agreed will serve as a judge. An arbitrator, like a judge, hears testimony, reviews documents and applies “rules of evidence” to determine what is, and is not, admissible and/or relevant to the matter. The rules of evidence that an arbitrator will apply are very similar to the rules of evidence in a court of law. Evidence must be “relevant”. That is it must apply to the situation at hand. It must be “competent”. It must be a legally admissible and tend to prove that which it is offered to prove. It must not be “hearsay”. Hearsay is an out of court statement offered for its truth. There are entire treatises written on the “rules of evidence” and is not possible to convey more than a basic idea of what the concept stands for in this article. The arbitrator will then make a decision or judgment as to which party has presented the better case and rule accordingly.

Sometimes, very rarely, people who have participated in divorce mediation and have been unable to come to the exact terms of their proposed settlement will request what is known as mediation/arbitration. In these rare instances the parties can submit the unfinished part of their agreement to a pre-agreed-upon divorce lawyer, knowledgeable in the law of their situation, and request that she make a decision in their case.

In a family law matter, both arbitration and litigation are extremely unsatisfactory experiences for the parties.

Even highly experienced San Francisco divorce attorneys have had the experience where their proffered evidence went in smoothly and the experience where they were very frustrated in their attempts to present evidence to a judge or arbitrator. Why should you put yourself in a position where your attempt to tell your side of the story might be “rule bound”? The answer to this question is, you should not.

In mediation, both sides are free to tell their story. There is no “time limit” and there is no restriction on what statements or documents would be “admissible”. Indeed, a mediator, unlike a judge or arbitrator, makes no decisions or judgments. The role of the mediator is to assist the parties in expressing their side of the story to the other party.

There is another very important factor to be considered when trying to decide to divorce using mediation, arbitration or litigation. That is a financial element. The average cost of a litigated divorce in California is about $78,000. Arbitration, since you will also be paying an Arbitrator, is even more expensive. The average cost of a Liaise Divorce Solutions divorce is around $4,000. Also, people using divorce mediation as opposed to an adversarial proceeding like arbitration report a much higher satisfaction rate with the process.

You should make an informed decision and thoroughly investigate the option of divorce mediators if you are thinking about getting divorced.David D. Stein, has been an attorney for 20 years and the founder of Liaise® Divorce Solutions. He is a trained best divorce mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.