[COLUMN] Divorce mediation as an option prior to pursuing litigation

IF the divorcing parties are both reasonable in their expectations in resolving their family law case and if they don’t think involving lawyers in their divorce case early on would be an efficient and cost effective way of going about their divorce process, then perhaps mediation is the way to go.  It can be a more cost effective option to resolve your family law issues.  There may be situations where involving the wrong type of lawyers in either side of the case can turn your family law case into a circus and end up costing the parties unnecessary legal fees x2 (legal fees for each party). Remember, legal fees from both parties can rapidly escalate in litigation and those fees will be coming out of the same pie.   If both you and your spouse are open to a fair and amicable settlement in your family law case and both of you are not interested in playing games or weaponizing the judicial process against the other spouse, then both of you can benefit from trying mediation first before pursuing litigation.  This can result to a less stressful process and preserve the size of the pie that both of you are trying to divide in your divorce case.

By hiring an experienced mediator in your case, the mediator will serve as a “neutral” in your case.  A mediator with many years of family law trial experience to draw upon to advise you on a myriad of possible solutions to your family law issues that is fair to both parties under the California Family Code and case law can increase the chances of settling your case substantially and in cost effective manner with less stress.  Further, both parties can share in the cost of the mediation services instead of each party paying for their own attorney to fight it out in court.   If you have young children, taking a scorch earth position in litigation might not be a good idea.  Remember, you will continue to co-parent your children even after the divorce case is over.  Through mediation, you might be able to avoid burning bridges with your ex spouse.  As part of the mediation services, mediators can also assist both parties in drafting the pleadings necessary to successfully complete the case.  This may include filing the divorce petition, preparing the required financial disclosures, and drafting the settlement agreement and stipulated judgment should the parties successfully settle the case.

Of course, there is no guarantee that you will be able to come to an agreement but chances are higher is done through an experienced mediator. The good thing about family law is that each issue in a family law case is “divisible.” This means it is not an all or nothing predicament like in civil cases.  You do not have to settle all the issues. You can settle some of the issues that you are able to agree upon and litigation the other issues you have an impasse on in court at a later time.  For those issues you cannot settle in mediation, you will still have a chance to litigate them in court at a later time and hire lawyers to represent you.

Both parties can also utilize experts as part of the mediation process. For example if you own a business and need the business to be appraised, the parties may jointly retain an expert for purposes of appraising the business during the mediation process in order to arrive at a fair and equitable division of community property. If you own a property prior to marriage but there was a mortgage on the property which was paid using community income during the marriage, you may have to involve an forensic accounting expert to calculate and apportion the community interest in the property during the mediation process.

In addition, most statements during mediation are privileged and confidential.  The only statement or writing made in connection with mediation which can be disclosed without the express consent of both parties is the settlement agreement reached during the mediation. Except for limited exceptions created by the courts, nothing else said or written during or in the course of the mediation, or for the purpose of the mediation, can be received in evidence, compelled in discovery, or compelled as testimony in any proceeding. California Evidence Code Section 1119, 1121, and 1123. 

Of course, both you and your spouse need to agree to give mediation a chance and will be jointly retainer the services of a neutral.  Mediation should be a process to think about as an option in your divorce prior to litigation.  It can save you a lot of agony and resources.

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Please note that this article is not legal advice and is not intended as legal advice.  The article is intended to provide only general, non-specific legal information.  This article is not intended to cover all the issues related to the topic discussed.  The specific facts that apply to your matter may make the outcome different than would be anticipated by you.  This article does create any attorney client relationship between you and the Law Offices of Kenneth U. Reyes, APC.  This article is not a solicitation.

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Attorney Kenneth Ursua Reyes is a Board Certified Family Law Specialist.  He was President of the Philippine American Bar Association.  He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association.  He is a graduate of Southwestern University Law School in Los Angeles and California State University, San Bernardino School of Business Administration.  He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 700, Los Angeles, CA, 90010.  Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com.

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Atty. Kenneth Reyes

Attorney Kenneth Ursua Reyes is a Certified Family Law Specialist. He was President of the Philippine American Bar Association. He is a member of both the Family law section and Immigration law section of the Los Angeles County Bar Association. He has extensive CPA experience prior to law practice. LAW OFFICES OF KENNETH REYES, P.C. is located at 3699 Wilshire Blvd., Suite 747, Los Angeles, CA, 90010. Tel. (213) 388-1611 or e-mail [email protected] or visit our website at Kenreyeslaw.com.

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