Frequently Asked Questions
Many websites discovered under the search engines for divorce mediation provide extensive FAQ information. Rather than duplicate the rich inventory of questions and answers, we provide our answers to the basic questions we receive frequently. For the more adventurous researcher please visit our “Resources and Links” page.
What is mediation?
Mediation is a dual process, meaning two parts working together, rather than a duel process, meaning a struggle between two skillful opponents (such as lawyers). Neutral mediators help two people with different perspectives, different needs, and different approaches to life, find common ground to create agreement that both can live with. The key considerations in mediating a divorce over litigating a divorce are: it is almost certainly, and considerably, less expensive; it is faster; the final agreement is not imposed by a third party (the judge); the environment is more comfortable and pays attention to the emotional factors that are present in the negotiations; does not require going to court; and is focused on a practical agreement that will work.
Do I need a lawyer?
A lawyer is generally not involved in the direct negotiations during mediation. The mediators’ idea of having a lawyer is to ensure each person that they are fully informed about their legal rights and obligations, the reasonableness of their agreements, likely outcomes (worst case and best case scenarios) of their positions if litigated , and the long-term meaning of the terms of agreement. In this case, the lawyer would be a consultant, either before, during and/or after a prospective agreement has been reached . Not having an independent legal review of your agreement before signing is a little like not having fire insurance for your cabin in the woods. The cost for legal services is limited and advisory. You make the final decisions.
Is mediation confidential?
In California , as in most states, settlement negotiations are confidential in that lawyers can’t use what was said or produced during the negotiations in court if the case ends up being litigated . It is true that information discovered during mediation could also be discovered through legal means after, but the content of negotiations is protected . At the Center for Cooperative Divorce, the Mediation Agreement also provides contractual confidential guarantees.
Is the mediated agreement legally enforceable?
The marital settlement agreement prepared by the mediator is a binding contract once both persons have signed . By submitting the agreement to the court in requesting an uncontested judgment, most of the agreement becomes a court order with the final judgment.
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