General Concepts
Mediation Defined: Mediation is the next step beyond direct negotiations. It involves a neutral third party who attempts to “facilitate” settlement negotiations between the disputing parties. [See Ca Evid § 1115] “Mediation” means a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.
“Mediation vs. “Negotiation”: Negotiations are the most common method of dispute resolution and should be the first step in the settlement process. Negotiations generally take place directly between the parties and their attorneys – a third neutral party is generally not involved. There are many forms of mediation – generally all of them involve the participation of a neutral third party.
Advantages And Disadvantages Of Mediation
Advantages: There are numerous perceived advantages to mediation of domestic relations disputes:
- Mediation may diminish the conflict between the spouses during and after mediation, benefitting them and their children;
- There is usually a higher level of initial compliance with settlements reached through mediation (people are more likely to comply with agreements in which they have participated);
- Mediation is less costly than a comparable adversarial divorce; and
- Support agreements reached in mediation may provide “extras” not usually provided by court orders (e.g., agreement for college tuition and post-high-school support for children otherwise capable of earning their own support).
Disadvantages: However, there may be significant disadvantages to divorce mediation. Many lawyers feel that where the economic issues are complex and varied, or one spouse dominates the other, the case is better suited for the adversarial process than for mediation. Here are their concerns:
Discovery Issues: Marital settlements cannot be negotiated without full disclosure of the spouses’ finances and property. There is no way to compel such disclosure in mediation. Thus, mediation is often successful only after discovery is complete.
Valuation of assets: Expert opinion may be required where community assets are difficult to value (e.g., raw land, closely-held corporations or a professional practice).If the case goes to court, each spouse will have a separate expert, and opposing counsel can cross-examine on valuation questions. However, mediators often encourage spouses jointly to select one expert for this purpose. Choosing a single expert may be risky for the spouse who is less familiar with the asset in question. The expert’s valuation may be affected by whatever information is obtained from the spouse who is more familiar with the asset.
Joint custody arrangements: Mediators often recommend “joint custody” of children. But this simple solution may prove unworkable where parents are hostile and inflexible toward each other. In such cases, court-ordered custody and visitation rights may be a better solution.
Power imbalance between spouses: Disparities in the spouses’ education, abilities, and their psychological and emotional makeup often impact mediation. This is because mediation depends to some extent on the spouses’ ability to communicate their concerns. To the extent one spouse dominates the conversation, the other spouse may be at a disadvantage.
Domestic violence: Mediation may be inappropriate where one spouse has a history of abusive behavior toward the other. The concern is that the mediator may urge reconciliation, putting the battered spouse at further risk. Court orders restraining domestic violence may be a safer route than mediation in such cases.