Frequently Asked Questions
San Francisco Divorce Attorney and Mediator Answers Common Questions About Mediation and Collaborative Divorce
Q: What is mediation?
A: Mediation is a non-binding procedure. This means that, even though you have agreed to submit to mediation, you are not obliged to continue with the process after the first meeting. In this sense, you remain in control. A decision cannot be imposed on you; instead everyone must voluntarily agree to accept it. Unlike a judge, the mediator is not a decision-maker, he is a neutral, and must assist the parties in reaching their own settlement.
Under the California Evidence Code, mediation is a confidential procedure. Confidentiality encourages openness by assuring both parties that any admissions, proposals, or offers for settlement will not have any consequences beyond the mediation process, and cannot be used in subsequent litigation.
Q: What is the difference between mediation and collaborative law?
A: Like mediation, collaborative law is a less adversarial approach to divorce than normal attorney-client representation. In mediation, you and your spouse can be your own advocates. Your attorneys may be present, but need not be at the mediation sessions. The mediator’s role is to ensure fairness and facilitate discussion between the two parties in a safe environment. With collaborative divorce, both spouses hire attorneys to advocate for them similar to normal representation in a family matter. However, the attorneys and clients agree that if the attorneys are not able to negotiate the case to settlement and, if there is a need for the matter to proceed to court hearings, these attorneys will no longer represent the parties and the parties will retain litigation attorneys to go to court. Collaborative divorce is a good option for those who are not comfortable speaking with their spouse in a mediation session or advocating for themselves and wish to have their attorneys negotiate settlement.
Q: Should I have my own attorney?
A: It is helpful to have your own attorney. During the mediation process, McDonald & Mannion’s form of agreement requires that you obtain the advice of an independent attorney before you sign the agreement. So, the sooner you hire the attorney, the better.
Q: What is arbitration?
A: Arbitration is an adversarial system of justice designed to present a disputed case to a neutral party for an impartial decision. It is similar to the court process, but a bit less formal. In arbitration, you give up many of your rights to appeal in favor of getting the matter resolved.
Q: For which disputes is mediation appropriate?
A: Mediation is not right for all cases, such as situations where deliberate bad-faith is involved, or a party is not able to participate in the process.
On the other hand, mediation is an attractive alternative where any of the following are important priorities of either or both of the parties:
- Minimizing the cost-exposure entailed in settling the dispute;
- Maintaining control over the dispute-settlement process;
- Promoting flexible resolutions
- Achieving a speedy settlement;
- Maintaining confidentiality concerning the dispute; or
- Preserving or developing an underlying relationship between the parties (such as children)
Q: When in a dispute can mediation be used?
A: Mediation can be used at any stage of a dispute, and can be chosen as the first step towards seeking a solution of the dispute after any negotiations conducted by the parties alone have failed. Mediation can also be used at any time during litigation or arbitration where the parties wish to interrupt the litigation or arbitration to explore the possibility of settlement.
Q: Will the divorce mediatior meet separately (caucus) with each of us?
A: One of the fundamental characteristics of divorce mediation is that the mediator remains impartial and does not “take sides.” Under difficult circumstances, it may be helpful for the mediator to meet alone with a party. This will only happen if you agree to it.
- Mediation enjoys remarkably high rates of success, given its non-binding nature. In one view, mediation never fails, even if a settlement is not reached, the parties will always come away knowing more about the dispute, and probably have narrowed in on the issues in question.
- The commitment to mediation involves a low risk. You always remain in control of the dispute. You may terminate the mediation at any stage, if it feels that it is not making any progress, that the procedure is becoming too costly, or that the other party is not participating fully.
- You have the opportunity to pursue a flexible resolution – outside the box – that may not otherwise be available.
Q: Is divorce mediation binding?
A: Divorce mediation is not binding until both parties have signed the final agreement. Therefore, anyone can terminate the divorce mediation process at any time, for any reason. Once an agreement is signed in mediation, it is binding and can be enforced by a Court Order.
Q: What happens if we cannot reach an agreement in mediation?
A: If you are stuck on a particular issue, we put that issue aside and go on to another issue. Often, this procedure makes it possible for us to return to the difficult issue later. In the unlikely event that you cannot reach a final agreement in mediation, you can then proceed to arbitration or litigation.
Q: How long does divorce mediation take?
A: This varies from case to case. If you agree substantially on most issues, mediation may require only two or three sessions. However, if either party is unable to agree or if there are substantial or complex issues involved, additional sessions are needed. You and your spouse are in charge of developing your own mediation plan, so the extent to which both of you can be open, honest, cooperative, and respectful is a critical factor in determining how long mediation will take.
Seek Experienced Mediation Representation
Brian McDonald has successfully handled more than 1000 mediations throughout the San Francisco Bay Area. To learn whether mediation might be appropriate for your dispute, contact McDonald & Mannion today.