15 Reasons Why You Should Mediate Your Family Law Case
I firmly believe every family law case can be mediated—even cases involving domestic violence.
In the past 17 years, I have settled 80% of my family law cases out of court. This settlement rate includes nearly all cases of domestic violence. Mediation with an experienced family law attorney offers those going through a divorce or paternity matter a treasure trove of opportunities to maximize their satisfaction with the result for the following reasons.
The mediation date is negotiable. Unlike court, where the dates are unilaterally set and can only be continued for good cause and at the parties' expense, mediation participants get to pick the date. Some mediators, including myself, work business hours on Saturdays and Sundays; courts do not offer this option.
The mediation time is negotiable. I have started mediations as early as 7 a.m. on Zoom and gone as late as the final hour at 8 p.m. Courts hear matters generally from 9:00 a.m. to 4:30 p.m., Monday through Friday.
The mediation location is negotiable. The participants can pick any place they want, even Zoom. I have found Zoom to be very effective because participants can meditate from their homes, where they have access to critical documents, can meet their own dietary needs, and can break stress and tension with time with pets. I had one participant who would throw a toy with his dog at home when tension was high in the mediation; this was a mediation that spanned 16 days. I had another participant take naps in her bed on breaks. Yet another who would play the guitar to self-soothe when tension was high. You cannot do any of these behaviors in court; sometimes, these behaviors are necessary to provide just enough of a stress break to facilitate a critical decision.
The duration of the mediation is negotiable. Mediation participants can meet for an hour to ten hours. In the public courts, at least in Los Angeles County, you may get a few hours in a row depending on that day's docket and then have your matter continued beyond several weeks for the following date and a few hours. This is not the court's fault but the reality of a very hard-working branch of the government.
The frequency of the mediation is flexible. I had mediations where the participants wanted to meet several times a week, including weekends. Other mediation participants whose work schedules could only permit meetings every couple of weeks. Courts are not flexible with frequency; it is what their heavily burdened schedules will allow.
Mediation has no limits. Mediation participants are not limited by statutes, case law, or a judge’s discretion. The law must be explained to them, but it is their choice to adhere to it.
Mediation supports more effective communication by co-parents. Mediation facilitates the restructuring of families; it does not break families apart. Concerns and interests are fully explored privately and at comfortable times, dates, and locations. Courts do not re-structure or fully consider concerns or interests. On one too many occasions, I have heard a sitting judge say that if the parties come to court, they will ensure that both are miserable when they leave. This is a hard reality when it comes to your kids.
Mediation leads to intrinsic personal growth. Throughout the mediation process, you will have time for reflection, may be given reading assignments, and support professionals may be brought into the mediation room. In addition to resolving issues in your divorce or paternity matter, you will be well on your way to becoming a better human being.
Mediation is confidential and private. As outlined in California Evidence Code section 1119, mediation is confidential, and nothing said in mediation and produced is admissible or subject to discovery. Additionally, mediation is private. Your appearance and participation occur in your chosen location with the people present that you choose. In court, you have no control over who is in the courtroom. Years ago, I mediated a case with a public figure who was spared the embarrassment of a public trial by resolving issues within my humble office in Monrovia; we also completed a confidential judgment, so the divorce terms were also not public. As a litigator, I have tried to close public hearings and seal court documents, only to be overridden because of the public’s right to access the record. Just to demonstrate the severity, a public hearing I tried to close involved arson, attempted murder, domestic violence, and young children. It is nearly impossible to keep matters private in public courts.
Mediation allows for outside-the-box thinking. By exploring interests and concerns, creative results that are more narrowly tailored to the participants' needs can be realized. These interests, concerns, and brainstorming sessions can be carried out over multiple days and involve bringing various professionals into the mediation room. Brainstorming and creativity do not happen in court, and brainstorming over several sessions certainly does not happen in court.
Mediation allows for participant-generated solutions. With the mediation's guidance, the participants express their interests and concerns and generate options that ultimately lead to something they can live with rather than something ordered by a court that makes both miserable.
Mediation leads to more durable agreements. With all concerns addressed and interests set on the mediation table, mediated agreements are less likely to be challenged or set aside. Because the participants are involved in every aspect of reaching and drafting the contracts, with both sides voluntarily taking part in the mediation, the agreements reached should be precisely what the participants want versus what the cost of litigation is forcing them to accept or, worse, what was ordered without considering their interests and concerns.
Mediation results in better lives for the participants. Having complete input in the mediation means that the agreements reached are those the mediation participants can live with. The mediation participants are on their way to becoming better people and co-parents, having gone through the process with an experienced family law attorney and mediator. I participated in a mediation where the participants commenced the mediation without being able to talk with each other. By the end, they were finalizing agreements at their respective kitchen tables. They continued to do so once the mediation was over, avoiding the need for future court hearings and additional mediation sessions.
Mediation leads to better adjustment for the children. The court is stressful. Only positions are heard at court, and rarely are interests and concerns fully explored. Because of the slower pace of mediation, more time can be spent hearing concerns and listing options, and the result is better for the children. Further, tools like photographs of the children or utilizing a baby doll to center the mediation participants can re-focus the participants on their most precious asset: their children. I had mediation participants years ago divide the house into three sections. The father got one section, the mother got one section, and the children got the middle section. The parents took turns determining who was in the middle section so the children were never left alone. Each side of the house had its own entrance, exit, and mini kitchen so the parents could have their own lives; this arrangement worked out very well for the children, and no court would have authority to make such orders. But, having worked through this arrangement in mediation, the participants were able to be 100% child-focused in their creative way.
Mediation is cheaper than litigation in most cases. Mediation participants may have consulting attorneys. These consulting attorneys may or may not be part of the mediation. Mediation participants can utilize just the mediator at his or her hourly rate. Mediation has many beautiful parts, but here are two of them. Pressing issues can be addressed quickly in mediation with a few hourly sessions at a mediator’s hourly rate. Pressing issues in court may require an emergency hearing of a cost of at least $5000, and these pressing issues may not be heard for several weeks, even with an emergency hearing. Another example is discovery. During mediation, one participant may decide to see QuickBooks, bank records, and credit card statements before reaching an agreement on support or property division. These can be produced in mediation with relative ease. If these documents are requested in the litigation context through discovery, the cost will likely be $10,000 or more.
These 15 reasons are highlights and in no way a complete list. They were adapted from training materials provided by the Mosten Guthrie 40-Hour Family & Divorce Mediation training and used with permission.
Ashley Andrews has practiced exclusively family law for close to 20 years. Her firm is set apart because she handles high-conflict and complex child custody matters, divorce cases with business owners, high-asset divorce cases, and domestic violence cases. She has an in-house forensic accountant who works on all her cases in some capacity. She has litigated family law cases all over California, including multi-week trials in the following counties: Los Angeles, San Bernardino, Orange County, and Riverside. While still taking the litigated family law cases, she is optimizing her practice by adding in mediation and collaborative divorce, a shift that she finds harder for the family law practitioner but better overall for the participants and their families. In her spare time, she is learning tennis, growing orchids, walking her Yorkshire terrier, frequenting the Norton Simon, and attending every Mosten Guthrie class she can fit into her schedule.
This material is provided for educational purposes only. Providing this information does not establish an attorney/client relationship. None of the information contained in this post should be acted upon without first consulting with an experienced family law mediator and attorney. Should you have questions about the content of this post, please arrange to discuss via a consultation.