Aspects of Mediation: Is This Right for Your San Diego Divorce or Legal Separation in San Diego in 2013?

What does divorce mediation imply in San Diego for spouses going through a divorce or legal separation?

In a legal separation or divorce mediation in San Diego, this entails negotiation between divorcing spouses to try to arrive at a mutually satisfactory divorce agreement. Negotiations are conducted in the presence of a neutral third party who acts as a mediator and does not represent either party. The mediator makes no decisions but helps the parties communicate with each other to foster the negotiation process and is not {normally} “binding” on the spouses. In San Diego Superior Court, sometimes Judges will order mediation if the parties cannot reach agreements on financial issues such as division of assets and debts or income for support. There are other times when a Special Master may be appointed to make written recommendations as well but this is not considered traditional mediation.

How does mediation differ from arbitration in San Diego Superior Court?

In both processes, a neutral third party plays a significant role. However, that third party is not a Judge in most instances. In San Diego, there are retired Judges who do conduct both arbitrations and mediations and this is called JAMS [Judicial Arbitration and Mediation Services]. In mediation, the neutral party acts strictly as a mediator who is not empowered to make any decisions. In arbitration, however the third party is apprised of the facts of the case and then may make a decision on issues such as division of debts and assets and many other issues under family law including retirements and pensions and vested and unvested stocks as well as restricted stock units in a very similar to the way a Judge who is active and not retired would. Both parties are entitled to present evidence and argue the case but the final decision is strictly the right of the arbitrator and may or may not be appealed.

Is mediation preferable to litigation?

Mediation may be a quicker, cheaper way to resolve marital than taking the matter before a Judge. It is also a more amicable way of arriving at a settlement, an issue of particular significance if the couple have children and will have to go on meeting each other after the divorce is completed. Sometimes a couple might find it difficult to negotiate, especially if the marriage involved substance abuse or domestic violence. At other times one spouse might be reluctant to mediate. However, if the process of mediation has been finally been agreed on, one or both spouses may want to hire a divorce lawyer to consult away from the mediation. They might want an expert opinion on legal issues then have the draft settlement agreement reviewed before they sign it.

There is also the issue of if the mediation does not work. Since the mediator cannot represent both parties are the same time given the actual conflict of interest, the parties then have to each hire their own attorneys. If this does happen, then the parties will pay for three attorneys rather than two attorneys which increase costs. Also, there is an issue of adverse interests. It is not possible for the mediator to represent either party so the mediator represents neither party. As an example, with child support, most payors would like to pay the minimum and most payees would like to receive the maximum. As such, many spouses in San Diego prefer to have an attorney who is 100% loyal only to them and only looking out after their best interests.

How does court-ordered mediation differ from private mediation?

A court ordered mediation is a process the court makes an order as part of a divorce or legal separation proceeding. Mediation is compulsory in San Diego County where there are custody issues involved or visitation rights to be determined through Family Court Services. Court- ordered mediation is generally limited to financial issues in the context of this article. Private mediation however covers all areas of resolution including financial and settlement issues and property division. Private mediation normally involves a fee payable to the mediator. A court- ordered mediator reports to the court but a private mediator observes confidentiality of proceedings.

Does the mediator meet both spouses separately or together?

There are no hard and fast rules about this. It is a matter that the mediator will decide in advance after consulting both parties. Either way has advantages and disadvantages. Most likely if the two spouses cannot stand being in the same room together and if there is a chance that hostilities will break out then it is wise to not have them near each other. It is wise to not have them show up at the same time because you are just asking for a possible conflagration. Something could happen in the parking lot for instance.

Doppelt & Forney, APLC

Doppelt & Forney, APLC is a family law firm based in San Diego with significant experience in all aspects related to divorce. This includes representing persons in a divorce proceeding, drawing up separation agreements or participating in property division, and other financial issues. For an evaluation of your case, schedule a free initial consultation.

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