Many clients come in seeking an initial consult and mention possibly engaging in divorce mediation with their spouse. Divorce mediation can be a productive process, and if both parties truly participate, it can save a very substantial amount in legal fees. The caveat is that both parties must truly participate.
What does this mean? You must leave selfishness and ego at the door. There are a select amount of cases which can successfully complete a dissolution mediation. The dissolution process is inherently an acrimonious process, and in most cases, the adversarial and litigious nature stems from ego, often at the core of both parties. Mediation requires an incredible amount of cooperation, flexibility and the need for both parties to switch their gut reaction of “no” to “yes”. In most dissolution cases, this can be incredibly difficult, especially when there are children involved.
In addition, it requires the parties to fully understand that, for all intents and purposes, they are not represented by counsel for their divorce. In the eyes of the Court, they are self-represented litigants. It is easy for parties to understand self-representation, but the concept of not having attorney representation is vaguer.
I explain mediation to my clients with the best analogy I have been able to find thus far. Try and imagine your divorce like a game of chess. A mediator attorney can tell you about the pieces on the board, and according to the rules of the game, which pieces move where. They can also opine as to their experience in the chess world. They can explain that based upon their experience playing chess, typically certain pieces move first, second and so on. They can opine that in their experiences, the chess master would expect that a Rook move one way when the Queen is positioned where it is, etc. Often this is enough for the parties, and they can play a successful game of chess where both feel as though they benefited from the overall experience.
However, in most cases, either at the onset, or sometime during, one party wants to know what way they should move their chess pieces based upon how the other parties’ pieces are situated on the chess board. In other words, the party seeks legal advice specific to their position in the case. They are seeking a strategy as to how to proceed in the chess game, so they can triumph. A mediating attorney cannot provide this advice or strategize in the best interests of one party or another. They can opine as to the options both parties have considering their current situation, but they cannot step in and operate as either parties’ attorney of record, effectuating strategy or representation.
Also problematic is when one party is the less opinionated, more acquiescent of the couple. Sometimes this is the theme which has permeated the marriage, and/or it is because one party does not truly want to be divorced. In instances such as these, the more passive of the two often gets bullied into making decisions he/she does not feel comfortable making-either out of intimidation or attempting to please the spouse who wants the split.
A mediated divorce can be extremely beneficial for both parties, and to the extent that mediation is kept civil and amiable, it can have enormous advantages for the children at the center of it all. If a mediated divorce is something you are considering, and you feel you and your spouse are good candidates for this collaborative process, Mendes Weed is here to help you.
Mendes Weed, LLP is here to help you if you have any questions. (925) 390-3222.
The tips and materials provided on this page are for informational purposes only, offered as public service. No information on this website should be considered legal advice or used as a substitute for legal advice. For legal advice, you should contact an attorney directly.
Mendes Weed, LLP offices are located in Walnut Creek and our skilled attorneys provide family, tax, business and trust law assistance for clients. For your convenience, we also have attorneys' offices in San Francisco and Sacramento by appointment only.
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