An Attorney Trained in Mediation Can Help You Settle Disputes by Yourselves Mediation may be an effective and appropriate solution to a divorce. Ask yourself if the following conditions exist: You are proceeding with a divorce but effective communications between the parties has not been lost - i.e. you're still talking to one another. Both parties are willing to commit to listen to each other, or are at least open to the possibility. You feel that both parties will work to see and understand the other party's point of view. When the above conditions are present, mediation should be considered first, and almost always above potentially adversarial solutions. Mediation is significantly less expensive than litigation. Mediation is about taking control of your divorce instead of submitting it to a court. When you ask the court to make a decision you are delivering control to the Judge, who knows very little about your case and has limited understanding about what is best for you and your family. Mediated settlements have a very high compliance rate. The divorcing parties have worked with the mediator to reach agreements acceptable to both of them instead of having a decision imposed on them by a court. The essence of divorce mediation is to allow people to make their own decisions about their future in an environment where commitment is assured, and negotiation is expected. If you have read this far, simply be reminded that while mediation is not effective or appropriate for all situations, it can be very effective when it is used to help parties work creatively with the mediator to resolve their issues. Some of the ground rules for mediation are these: A mediator is an impartial person who facilitates the parties (in this case to a divorce) to reach mutually acceptable resolutions of their issues. The mediator does not decide the dispute but assists the parties in communication so they can settle the dispute themselves. The mediator listens to each party and assists them in communicating with each other in an effective and nondestructive manner. While the role of the mediator is to facilitate a settlement, the parties to the divorce are in control. The mediator does not act as a judge and will not tell one party or the other that he or she is being unreasonable. It bears repeating that the role of the mediator to facilitate communication between the parties.

In addition to the Mediator, consulting professionals may be asked in some instances to participate in the mediation process. Sometimes the mediator will request this, examples being when tax issues arise which need to be reviewed by an accountant, or an appraiser is needed to provide an opinion on the value of a residence or a business.

Mediation is confidential.  The mediator is prohibited from disclosing anything said during mediation, except as permitted by both parties, and agreed to in writing. If court proceedings do result during the divorce, the parties are also prohibited from using anything said during mediation as an argument before the court.

Mediation does not necessarily mean that during the process you are required to disclose our assets and debts. Be aware, however that in California the parties to a divorce are required to fully disclose to the court the nature of their assets and debts (with backup documentation), before the court is empowered to accept their settlement

During mediation each party is encouraged to consult their own attorney and to have the attorney review the written agreement drafted by the mediator. Sometimes the mediator will insist that the parties each consult with their own attorney to review agreements as the process advances. Also, sometimes the parties will attend the mediation sessions with their attorneys, that being an option at every meeting.

There are caveats to divorce mediation: There are people who are invested in "winning" and are unable or unwilling to reach compromises. There are families with a history of domestic violence, child abuse or alcohol abuse. These are situations not generally suitable as candidates for divorce mediation, nor are those when one of the parties may have any of several various psychological disorders.

Here is a summary of how mediation is managed:

At the first appointment the mediator meets with the parties to determine what issues, if any, the parties have resolved and which issues need to be clarified. The mediator will then work with the parties to help them reach agreements memorialized in writing which, when filed with the court, will become a court order.  When full agreement has been reached, the mediator will facilitate the completion of all paperwork which must be filed with the court to complete the dissolution

If you are already in divorce mediation you may wish to consider additional support for added power and experience. A family law attorney, trained in mediation and advising you independently may add to your peace of mind, improve your negotiation, improve your position, and help speed the negotiating process if that is to your advantage.

Michele Sacks Lowenstein is trained and experienced in mediation techniques, advises on mediation when requested, and can act as a mediator. In addition to being trained in mediation techniques Ms. Lowenstein has taken extensive training in collaborative divorce, and has served as a settlement conference judge for the San Diego Superior Court.