If you don't want a judge deciding the outstanding issues between you and your spouse, the solution is to come to an agreement yourselves. Divorce mediation can help. When the two of you see things differently, mediation offers the opportunity to talk out the issues with a neutral third party familiar with the law and with luck, resolve them in a way that works for both of you. Mediation is not obligatory in a California divorce unless the case involves a dispute over child custody.
Advantages of Mediation
Divorce mediation in California is often an attractive alternative to litigation, as divorce battles in court are stressful and expensive. When each party hires an attorney, every hour spent in court costs hundreds of dollars -- and even those hours spent waiting cost you. A mediator does not take either party's side, but she can give a summary of the relevant law to assist you both in envisioning a realistic compromise. Although mediators never make rulings or issue orders, they can supply the general outline of the probable resolution the court would order. This reality testing often eliminates "all-or-nothing" positions that block an amicable settlement.
Mandatory Custody Mediation
While mediation over property and money issues is voluntary in California divorces, the California Family Code requires mediation in cases of child custody disputes. A California court will not rule on issues regarding children until the parents participate in mediation conducted by a trained counselor selected by the court. In some counties, like Los Angeles, the mediation sessions are completely confidential; the counselor or mediator does not provide information about the mediation to the court unless an agreement is reached. In other counties, the counselor gives the judge a recommendation regarding disputed issues.
Both divorce mediation and custody mediation generally start with an introductory meeting between spouses and the mediator to discuss the goals of the parties and define the issues outstanding between them. Typically, you and your spouse would each discuss your position on the issues. If you and your spouse are represented by an attorney, they may also attend and participate. The mediator schedules subsequent appointments to meet with the both of you together or separately to obtain information about your family history, help create a parenting plan for the children, and ensure that you consider all options available. If the mediation is successful, you and your spouse will come to an agreement regarding the outstanding issues. When this occurs, the mediator drafts a settlement agreement setting forth the agreed upon terms.
In a successful mediation, the parties resolve all divorce and custody issues. If this is the case, both you and your spouse sign the written agreement after running it by your attorneys, if represented, and then the mediator submits it to the court for approval. If the mediation is unsuccessful, your divorce moves to court. You and your spouse prepare for a legal and factual battle on disputed issues. A complex divorce case in California can take years to resolve.