The Difference Between Divorce Mediation and Litigation in California

When it comes to the dissolution of a marriage, in California there are three main ways to legally proceed: mediation, collaboration, and litigation. In today’s blog post, we’ll explain the differences between two of these approaches: mediation and litigation. So, if you and your spouse find yourselves wanting to divorce, you’ll be more prepared to choose the best legal option for your situation.

First and foremost, if you and your spouse decide to amicably separate and pursue a divorce, it is generally worth considering mediation or collaboration.

“What is Mediation?”¹
According to the American Bar Association, “Mediation is a private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute. … The mediator does not have the power to make a decision for the parties, but can help the parties find a resolution that is mutually acceptable. ¹https://www.americanbar.org/groups/dispute_resolution/resources/DisputeResolutionProcesses/mediation/

The benefits of mediation are many and can work for most couples:²
• Mediation is much less expensive than a court trial or a series of hearings.
• Most mediations end in a settlement of all of the issues in your divorce.
• Mediation is confidential, with no public record of what goes on in your sessions.
• Mediation allows you to arrive at a resolution based on your own ideas of what is fair in your situation, rather than having a solution imposed upon you based on rigid and impersonal legal principles.
• You can still have a lawyer give you legal advice if you wish.
• You and your spouse — not the court — can control the process.
• The mediation process can improve communication between you and your spouse, helping you avoid future conflicts.
²https://www.nolo.com/legal-encyclopedia/divorce-mediation-basics-36180.html

Divorce Mediation Basics
Who makes the decisions in a divorce mediation?
To clarify some of the benefits above, when you work with a mediator, the mediator doesn’t make the decisions for you. The mediator is only the facilitator who helps you and your spouse to make your own decisions on what’s best. Agreements can only be reached if you and your spouse agree on it.

If you don’t agree on everything, mediation can help resolve some issues which will allow you to focus, or narrow, the unresolved issues—if you later need to go to trial and meet with a judge.

What is the role of the mediator?
It is important for you to understand the mediator’s role in your case. Mediators are retained as neutral professionals and therefore will not advocate for either person. A mediator’s task is to guide the couple through the mediation process, not advocate for what the outcome should be. A mediator should educate you about the law, but not imply how your specific circumstances are impacted by the law. A mediator can relay to your different possible outcomes based upon the law; but should never indicate which one is better or push for a specific resolution.

Due to the nature of the mediator’s role, it is also important to know that there is no confidentiality between the mediator and the parties. If you share something with the mediator, the mediator cannot keep it secret and must share the information with the other person.

A mediator may be retained at any point during the family law proceeding. Some couples know from the outset that they prefer to resolve their case and part ways amicably. In this scenario the couple may utilize the services of a mediator from the very beginning to help with the initial preparation of the petition. A mediator can be called upon to assist both parties with preparation of their paperwork and guiding them through the entirety of the process.

For other couples, this level of involvement is not necessary, they feel comfortable and have the time to initiate the case and want to navigate the beginning stages on their own. In this context, a mediator can be called upon towards the end of the process to review the steps completed thus far, and assist with only the final paperwork including the Marital Settlement Agreement (“MSA”) and Judgment. Depending upon the complexity of your family and finances, the MSA and Judgment paperwork is a common area where cases face technical challenges. The Family Code and Courts are very strict about the language that is required in these documents.

Divorce Mediation
Mediation in the context of divorce is not an overly formal process. Most mediators are skilled at recognizing the unique nature of the divorce process and the emotions and feelings that are involved. Mediation in this context can occur through one or two formal meetings where the mediator asks you your overall goals and then guides you through your specific individual circumstances to assist you in reaching a settlement that helps both parties achieve those goals. Parties can also present their partial agreement to the mediator and have the mediator guide them forward from that point, asking questions and relaying legal issues that perhaps haven’t been considered before.

So long as the parties fully and accurately complete their disclosures, and the mediator complies with their own duty to be open and honest with both individuals, the mediation process can be tailored to meet the couple’s specific needs. If the parties would like to meet jointly with the mediator they can do so; if they prefer to have individual phone calls and meetings, that is acceptable as well. The mediator is truly present to guide parties through the process and help them achieve an agreement they are comfortable with, and hopefully even happy with, so that they may each begin the new chapter of their lives.

Divorce Litigation in California
First, as a preface, in order to obtain a divorce in California a legal action must be filed with the court. Technically speaking, even proceeding with mediation, you are still involved in litigation; however, you are resolving your family action amicably and through a mediated settlement. For our purposes of this section of this post, when we reference litigation here, we are referring to a more adversarial approach to a family law case.

Under this process, unlike with mediation, which involves a neutral party helping a couple settle their issues out of court, divorce litigation involves a degree of distance between the parties. Parties may be represented by counsel, or they may proceed self-represented. According to the Self-Represented Litigant Network, an estimated 75% of family law cases have at least one self-represented party. Pursuing a litigated divorce does not necessarily mean that you will end up in court as even a great number of litigated cases ultimately reach a settlement.

Why are lawsuits a part of divorce?
A lawsuit is a necessary component of every California divorce. Without the filing of a lawsuit, you cannot obtain a divorce judgment. What matters between the filing of the petition and the receipt of the filed judgment paperwork, is the tone of the case and the ease of reaching resolution.

For each case and family this is different. While there are some couples who engage in “amicable decoupling” there are a vast majority of relationships where the separation is not mutually desired or agreed to. In 80 percent of cases, the decision to divorce is unilateral—one party wants the divorce and the other does not. This often, creates an adversarial situation right from the start —disqualifying the parties from attending mediation since mediation is dependent upon mutual agreement of the parties.

If you are starting out with an adversarial and highly emotionally charged situation, the chances are very high that mediation will fail. So, in some cases, you may not take the risk when odds are they might fail, wasting your time and money. In all honesty, no mediator will work with you if you are not both coming to the table willingly.

While each case is different, in highly contested cases, parties often face disagreements on child custody and visitation, or asset and debt division, as well as spousal support.

How to find the right attorney.
It is important to find the right attorney for you. Interviewing multiple attorneys is always a good idea. Each attorney will use a different analysis in planning their strategy for your case and will take different approaches to negotiations. It is never a good idea to make blanket statements about the qualities that make a good attorney. For high conflict cases, you certainly do not want an attorney who will be a push-over; however, having an attorney who is too aggressive (yes, it is possible), may inadvertently prevent a case from reaching an amicable settlement. Additionally, there are unfortunately attorneys who engage in tactics such as filing unnecessary motions, specifically designed to increase your legal fees. A good question to ask the attorneys you meet with is whether they prioritize settlement or court involvement.

Generally speaking, good attorneys will strive to come to a reasonable settlement with the other party. If it is clear that a reasonable and fair settlement cannot be achieved, then it is most likely necessary to file a motion and present the issues to your judge.

What to expect if you go to court.
If you have tried everything else, and you do end up in court, tensions can and most likely will increase. Up until that point both attorneys were “negotiators,” trying to get the parties to compromise and come to some reasonable resolution. But once in court, the role of each attorney changes. As opposed to advocating for you through informal settlement discussions with the other side, the new job becomes advocating for you in court and before a judge, which is a much more formal role.

Things can become difficult and hostile in any phase of a family law proceeding; however, the intrusion of a judge into your personal lives often increases that tension and anxiety. You now have a stranger, with very limited information of your family in a position of making decisions that can have significant impacts on all parts of your life. Depending upon your specific circumstance, your judge may be making decisions about where your child lives and goes to school, who gets to spend what holidays with the children, how much money is received as support, how the assets are divided, and who owes what for any debt.

What if you can’t reach an agreement?
One of the most common refrains we hear from Judicial Officers is: if you don’t reach an agreement, this court will be making an order. I recognize that you may both be displeased if you reach an agreement as it will require you to both make concessions; however, I guarantee you that if I am forced to make an order on this case, neither of you will feel like a winner.

There are cases where settlement and resolution will never be possible, perhaps there is a history of abuse or of substance abuse, or a betrayal that makes trust and working together impossible. Pursuing the involvement of a judge is a valuable and very efficient tool in the right cases. Even judges will tell you that given the sensitive and personal nature of family law proceedings, they are much happier for the parties when parties can work together to decide the outcome and support each other in the best interests of the children. That said, if you are in a situation where you know the other party will not be reasonable, and you know that no matter how much you concede or work to make them happy, that a resolution will not occur, it is appropriate to ask your lawyer to file motions on your behalf that will bring your case to a resolution.

If you do find yourself in a situation where you know an amicable resolution is not possible, please do not attempt to proceed alone. The legal procedure can be very complicated and it is easy to miss deadlines or fail to follow proper procedures. All self-represented parties are expected to comply with the rules and engage with the court the same way a lawyer would, even without a law degree.

What is an attorney’s responsibility to you?
My last words of advice are this, family law cases can be a treacherous process. It isn’t just the legal procedure that must be navigated and completed accurately, there is also the emotional toll that this process can take. Part of an attorney’s responsibility is to carry the weight and the burden of navigating the legal procedure and strategy of your case so that you can focus on you, your family, your emotional wellbeing, and all of the components that come with moving your life forward. An attorney is an advisor, a counselor, and someone to help carry the load so that you are not navigating this process alone.