considering a divorce in california

Articles By Attorneys And Scholars
About Family Law

From the Law Offices of Lowenstein Brown,
A Professional Law Corporation

San Diego's Divorce Lawyers
619 298-6246




by Michele Sacks Lowenstein, Attorney at Law, Certified Family Law Specialist


1.        What is mediation?

Mediation is a way for divorcing couples to find mutually agreeable solutions to issues such as child custody, spousal support and the division of assets.  The mediator assists the parties in negotiating a resolution to their divorce.  The mediator is an objective party.  It is not the job of the mediator to force an agreement upon the parties but the mediator may make suggestions for the resolution of the issues. The mediator helps couples identify the issues that need to be resolved, and guides each through the decision making process.  The mediator remains neutral and helps keep the negotiations flowing, in order to reach an agreeable resolution for both parties.

2.       What are the advantages of mediation? 

Mediation saves time and money and if successful means not going to court.  Mediation allows the parties to make their own decisions.  Going to court means that people give up their power to make their own decisions.  The process is confidential. When couples work towards a mutual agreement, the likelihood of future cooperation is improved, and both sides can feel comfortable with the outcome.

3.       Does the mediator replace the lawyer? 

Yes and no.  The attorney/mediator drafts all the paperwork.  However, it is always good to use a consulting attorney to review the agreement.

4.       Is mediation appropriate for everyone? 

No.  Where there has been abuse or where one spouse feels very intimated by the other, mediation may not a be a suitable alternative.  However, this does not mean that other methods of alternative dispute will not be available.

5.       What does it mean actually mediate or negotiate? 

It is important to identify your “interests” (fears, wants, needs concerns).  Write down the issues and your proposals to resolve the issues.    Avoid POSITION BASED NEGOTIATION (Offer/Counter Order) which polarizes people and keeps them from exploring different avenues of resolution.

6.       How does this work? 

Here’s an example.  Two people are in a library and arguing whether a window should be open or closed.  The librarian asks the person who wants it open to explain why he or she wants it open.  That person says he or she wants the window open to get fresh air in the room.  The other person responds by saying they want the window closed because their papers are blowing around from the breeze.  The librarian then walks around the corner and opens a different window so that there is fresh air but no breeze.  THIS SATISFIES THE NEEDS OF BOTH PARTIES.
Rather than arguing from opposing positions (window closed/window open) it is best to try to think of a solution that can, in some way, meet both parties interests.  Frequently people have to adjust their interests in order to reach resolution.

7.        Okay, how do you apply it to the situation of a divorcing couple?

A classic case in point our discussion involving spousal support or alimony.  Simply “low balling” or “high balling” the other side and throwing numbers back and forth does not generally bring the parties to consensus and even if it does, the parties don’t generally feel they have been part of a constructive dialogue where they were able to express their interests. 

8.       Can you name some additional advantages to mediation?

Ask yourself how to you want your children to remember your divorce?

9.       How does the process work?

The couple and the mediator meet in 1 or more mediation sessions.  Some people can be through in one mediation session and other people require multiple mediation sessions.  The sessions normally last 2 -3 hours.

10.     How to the court papers get filed?

If the mediator is an attorney, he or she can assist the parties in filling out all of the paperwork required by the court and no court appearances will be necessary.

11.     How long will it take and how much will it cost?

The length of time depends upon the couple, themselves.  The average case takes at least 2 mediation sessions and then there is the paperwork which has to be done.  This can take from 1 to 3 months.  More complex cases will take longer.  The cost is dependent upon the number of mediation sessions as well as the complexity of the agreements to be resolved.  More complex mediations can take 4 – 6 months or even longer. 

12.     Can a case be too complicated for mediation?

No case is too complicated for mediation.  So long as the parties are resolution oriented they can work with consulting attorneys as well as valuation experts and financial planners to reach agreements.

13.     What does it mean when you say mediation is confidential?

State law says that no one, not even the two parties, can use what is said in mediation as evidence in court. What happens in mediation is as confidential as settlement negotiations between parties and their lawyers.

14.     What are the disadvantages of going to court?

The obvious disadvantage is giving up all of our power and letting the judge, a third party to make a decision for you.   People  who go to court have the belief that the judge will side with them.  Well, obviously, the judge can’t side both parties. Generally both parties don’t feel they “won” in the courtroom.

15.     What kinds of issues are resolved in mediation?

  1. Parenting Plan (frequently known as physical custody).
  2. Division of  Assets.
  3. Spousal Support.
  4. Child Support.
  5. Tax Issues – dependent exemptions; tax filing status.


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