During a divorce, there are several methods of dispute resolution: mediation, arbitration, and litigation. An attorney is usually crucial in all forms but will play different roles for their client in each. If going through a divorce with minor children, you will likely be involved in some form of mediation, even if you choose litigation. Here we will give a general overview of what mediation means and how it works during divorce proceedings.
What is Mediation?
Mediation is a dispute resolution alternative to litigation for couples seeking a divorce. It is a negotiation facilitated by a neutral third party. Unlike arbitration, mediation doesn’t involve any final decision-making by the third party. The mediator can only suggest solutions and paths that have been brought up by the parties. Mediation can be chosen by the couple or mandated by the court in certain situations.
In California, there are varying tiers of mediation that arise in family law cases. The biggest difference between the tiers is the level of confidentiality the parties can expect. In tier 1 mediation the mediator will not disclose what took place during the process, and will not provide recommendations or testimony to the court. The only thing the mediator shares with the court is the agreement both parties came to, called a Stipulation.
Tier 2 mediation is a non-confidential mediation process intended to provide the Court with information regarding specific areas the Judicial Officer wants looked into. A tier 2 proceeding is not completely unfettered but limited to the scope of the Judicial Officer’s questions. One could imagine the mediator as a fact-finder in these cases. The Information Gathering summary report this process creates will not include any recommendations from the mediator.
When Is Mediation Necessary?
Under California law, there are times when mediation is mandated as opposed to chosen. In California family courts a judge must order couples to mediate child custody issues if they have minor children but haven’t been able to agree on a parenting plan before filing for divorce. The same requirement applies when a parent requests any court order related to child custody, or a stepparent or a grandparent has requested formal visitation with a child.
Mediation can also be required after a divorce is finalized, as the standard from Family Code section 3170 states mediation requirements arise whenever issues of custody or visitation are in dispute. Some common issues that fall into mediation after divorce are when a parent wants to move with the child, but the other objects to the move, or when parents clash over proposed changes to the visitation schedule.
If a parent does not participate in a court-ordered mediation process, they lose any ability to challenge the results. However, parents must also receive notice of the mediation in enough time for them to prepare and participate in a meaningful way.
What Happens in the Mediation Process?
Mediation usually takes place one to two weeks before formal divorce proceedings begin. During it a neutral mediator sits down with the parties and helps them pinpoint areas of contention. The mediator will then guide the parties through a problem-solving discussion. The mediator’s intent is to create a peaceful environment in which the couple can make decisions. Children may or may not be present for parts. At the end of the mediation, the mediator will draft an agreement for the parties to review and approve for the court’s use.
More Questions? Contact Us
As always, these blogs serve as a primer on various subjects but are not exhaustive. Neither are they tailored to your specific situation. If you have more precise questions or issues regarding mediation or any other part of divorce proceedings, reach out to us at 714.456.9118 or send us an email at info@voneschlaw.com, and we can help guide you through the process.
