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Your Role in Mediation
You need to decide what your areas of disagreement are, and be willing to listen respectfully to the other side's point of view. You need to work with the other person on determining the best solutons.

 

Divorce Mediation is a process for resolving conflicts in which the parties involved in the dissolution of their marriage mutually decide to meet with a trained, impartial mediator to resolve their dispute. The mediators at San Diego Divorce Mediation Center are family law attorneys. The mediators do not decide the outcome of the process, but rather help the parties reach their own agreement on issues of custody, support and/or division of property. A divorce mediation agreement is reached when both parties are satisfied with all of the terms.

You may have been told that you must file for divorce before starting the mediation process. You do not. The mediation of issues related to a divorce may take place before or after the Petition for Dissolution of Marriage has been filed in court. Since divorce is a formal legal process which affects legal, financial and parenting rights, only a judge may order the final terms of a divorce. However, California law allows divorcing parties to negotiate most of these terms themselves, subject to the final approval of the Court. Since there are mandatory minimum child support guidelines in California, the Court may overrule decisions you have made in this regard if they are not congruent with the established guidelines.

REMEMBER THAT BOTH PARTIES DO NOT HAVE TO AGREE TO THE DISSOLUTION OF THE MARRIAGE IN ORDER TO BENEFIT FROM THE MEDIATION PROCESS. If one party is reluctant to proceed with the divorce at this time, the initial agenda may be to establish interim agreements for a trial separation and a time frame to reconvene to further evaluate the proposed dissolution.

After both parties agree to participate in mediation, the first session can be scheduled within two weeks.

The role of the divorce mediator is to:

bulletconduct a process which assists the parties in reaching mutually acceptable solutions
bulletprovide relevant legal information;
bullethelp parties communicate productively on difficult issues;
bulletassist in generating options for resolving problems between parties;
bulletassist in crafting terms of an agreement which is consistent with the principles of justice and fairness
bulletdraft the MSA and file necessary documents in accordance with the wishes of the parties.

DIVORCE MEDIATION SESSIONS

Mediation sessions are informal but structured discussions between the two parties. Each session is guided by the mediator. Both parties are given the opportunity to speak without interruption so that all issues related to the dissolution are identified. The mediator structures the discussions to help clarify the issues and assist the parties in moving toward an agreement which is called a Marital Settlement Agreement (MSA). San Diego Divorce Mediation Center recommends that both parties separately consult with attorneys of their own choosing for legal advice regarding any issues addressed at the mediation sessions. Witnesses and attorneys generally do not attend mediation sessions.

STEPS IN THE DIVORCE MEDIATION PROCESS

Orientation 

The initial meeting is primarily an orientation to the process. The parties are asked to gather specific financial information and documents which are identified at the orientation meeting. Both participants will be asked to complete a Schedule of Assets and Debts and an Income and Expense Declaration. Both these documents will be sent to you prior to the first meeting so that you can familiarize yourself with these official forms. Prior to the start of mediation, you will also receive by mail a copy of an engagement letter which sets out the terms and conditions, including financial arrangements, of the clients' relationship with our firm.

It is not necessary to bring anything to the first meeting, which is designed to orient both parties to the process and the mediator to your situation. Both parties are encouraged to bring the last two years of tax returns which is helpful in establishing each party's income. Tax returns can also serve as a reminder regarding forgotten assets. Since you will have received a blank Schedule of Assets and Debts and a blank Income and Expense Declaration in the mail prior to your first appointment, you are welcome to start working on those.

Joint sessions 

The second step is comprised of a series of joint meetings held at times and locations agreed to by the divorcing spouses. Issues are first identified and discussed, then narrowed and resolved based on legal, financial and other information. The number of sessions necessary for your situation will depend on the needs of the individual parties. If there are no children, the basic role of the attorney mediator is to help you dissolve your financial partnership. If there are children you will be given information regarding time share schedules and holiday sharing. Much of the paperwork is completed individually by each party outside of the mediation and then shared at the mediation.

All issues that are important to both parties need to be addressed, including:

bulletscheduling time with the children;
bulletspousal support;
bulletchild support;
bulletproperty division;
bulletfinancial issues including disposition of retirement, deferred compensation and IRA plans.

Drafting the Marital Settlement Agreement (MSA)

After both parties have reached agreement in principle on all of their issues, the mediator prepares a draft Marital Settlement Agreement (MSA) or a Memorandum of Agreements. If you chose to have your own attorneys prepare the MSA, then that attorney will be provided with the Memorandum of Agreements. Often times there are issues associated with pension or retirement plans. Fortunately one of our attorneys has expertise in preparing Qualified Domestic Relations Orders (QDROs) and these can be completed within the mediation process.

Review MSA

If the attorney mediator is preparing the MSA, both parties are asked to submit the MSA to their respective legal and financial counsel for independent review. Our attorneys do not offer specific tax advice, other than a general overview of exemptions and filing status, so questions on taxes need to be reviewed with your own tax advisor. Proposed revisions are brought back into the mediation process to be jointly discussed. Agreed upon changes are then incorporated into the final form of the MSA.

The attorneys at the San Diego Divorce Mediation Center recommend that both parties consult with their own attorneys to advise them regarding their legal rights and obligations. This can be done prior to the first mediation, at any time during the process and/or for review of the Martial Settlement Agreement.

Finalize and file MSA

Many clients like to utilize the services of their individual attorneys for formal legal documents. The choice is up to the clients. The SDDMC mediators will prepare or assist in the preparation and filing of all documents required by the court. The mediators will not provide legal advice, but will provide general information about the law, statutes and procedures at the various family courts in San Diego County. The mediator will not provide legal advice to either party, because the mediator does not represent either one. The divorcing couple has control over any agreement made in the mediation process. If you choose, the final MSA and all associated legal documents can be prepared and filed by the divorce mediator. A final judgment and decree are entered and recorded following the filing.

COST OF MEDIATED DIVORCE

Each mediation session usually takes approximately two hours and you are expected to pay for the time at the mediator's hourly rate upon conclusion of each meeting. Decisions about who will pay the mediator's fees can be mediated. Most divorce mediations are completed in 2 to 5 sessions, however, there are always exceptions and depending on the complexities involved, the necessity for appraisals of personal property, real property or businesses may require more sessions or more time. In addition to payment at the conclusion of each session, there is a minimum retainer of $1500 to cover out-of-mediation-sessions work which includes preparation of legal documents and the MSA. This retainer is also applied to the preparation of transfer deeds, and final required forms called the "Judgment Package." The $1,500 is a retainer toward these expenses and may or may not cover the entire amount of time billed. In addition to mediator fees, there are filing fees for each party.



Send this site to your spouse!
There is a peaceful path to resolution for each person involved in a disagreement. A good mediator helps both parties identify the next step, and assists each person to find the path.


A Good Fit

Interview mediators to find someone who is really right for you -- don't rush yourself or allow someone else to rush you.

The Agenda

Take your time creating an agenda so you are fully prepared. You only have one chance to get things off to a good start!

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