Is Mediation Or Alternative Dispute Resolution Right For You?
What To Know When Considering Mediation
There are a number of downsides to traditional divorce litigation: It is expensive, time-consuming, emotionally draining and leaves the client with little control. By contrast, using alternative dispute resolution procedures, such as mediation, often allows parties to minimize the emotionally and financially damaging aspects of the divorce process while retaining greater control over the terms of their case, including key issues like child custody, support, and characterization and division of their assets and liabilities.
Of course, not all cases are suitable for mediation. In order to be successful, both parties must be motivated to settle their differences and come to a mutually beneficial agreement. Another crucial factor for a successful mediation is having a skilled mediator facilitating the negotiations and settlement process. Our firm’s founder, attorney John H. Tannenberg, is a certified specialist in family law with extensive mediation training and experience handling divorce mediations in San Diego County.
The Advantages Of Mediation Over Litigation
Where divorcing parties are motivated to work cooperatively to arrive at a divorce settlement, mediation offers a number of advantages over a courtroom battle:
- Control: Parties have direct input on solutions to problems and can craft an agreement that meets their unique needs.
- Cost: Mediation is less expensive than traditional litigation in resolving issues.
- Time: it is typically quicker than the trial process.
- Civility: Mediation brings calm and order during a stressful time.
- Privacy and Comfort: Mediation takes place in a conference room in our San Diego office, rather than a public courtroom.
- Enforceability: There is a significantly higher rate of compliance by both sides when each party has a direct say in negotiating the agreement.
The Role Of The Mediator
Mr. Tannenberg serves as the neutral third-party mediator, helping both parties reach an agreement rather than representing either side as their lawyer. In this role, he does not provide individual legal advice or strategy and cannot be called as a witness in any subsequent divorce litigation involving the same parties.
The Mediation Process
The entire process typically takes place over four to eight sessions, depending upon the complexity of the issues and the cooperation of the parties. As the mediator, Mr. Tannenberg will set expectations for the sessions and assess whether outside experts are needed for evaluating financial or other matters. He will also:
- Provide a time frame for compliance, including assigning “homework” for both parties, where they will be responsible for information gathering and exchange of information (disclosure statements).
- Discuss the law and methodology for dividing assets and liabilities, as well as arriving at custody and support agreements.
- Explain the factors the court would consider in evaluating the settlement agreement.
- Once the parties have reached an agreement, draft the legal paperwork, including the settlement agreement, the Judgment of Dissolution of Marriage and the Petition for Dissolution for submission to the court for approval.
At any time during the divorce mediation session, either or both parties may retain their own consulting attorney to help them understand the process, to further explain the legal consequences of certain alternative choices, and to review the settlement agreement. Once the agreement is approved by the court it will be incorporated into a Judgment of Dissolution of Marriage and become binding on both parties.