One alternative to divorce litigation is divorce mediation. If mediation is successful, the parties never appear in court; many personal issues are never put into public documents; parties can reach an agreement resolving all issues, and they save money on attorney fees.
Mediation involves the parties meeting with a neutral mediator, who tries to help the parties reach an agreement settling their issues. The mediator then prepares all the forms and agreement required by the court to complete the divorce. The mediator should be an attorney, who can provide the parties with the law on various issues. The mediator does not represent either party and should not meet with or provide legal advice to one side without the other party being present.
One problem with mediation is that the “power struggle” that went on during the marriage often goes on throughout the mediation process. The “stronger and often more knowledgeable” party may be able to assert themselves through the process and the “weaker and often less informed” is again victimized and does not really know what their rights are. For this reason, it is wise for each party to have an attorney “on the side” who provides them with legal advice as to their rights are and what a judge would be likely to decide if the issue were litigated. How can anyone know what is a “good deal” unless they know what they are entitled to?
Some paralegals provide mediation services. However, the State Bar does not allow a non-attorney to give legal advice — that would be practicing law without a license. Paralegals do not know the law; what they know is the procedure involved in filling out documents and getting those documents through court. Many people save money by using paralegals to handle their divorce. Those people generally have no idea how they would do in court and what their legal rights are. Some end up with agreements that negatively affect the rest of their lives and leave their children without sufficient support.
Although the parties are directly involved in the divorce process when they mediate their divorce, many of the emotions that led to the breakup are still there. These emotions can interfere with the mediation process. Parties often use mental-health professionals to help them deal with these emotions, so that the emotions do not make mediation unsuccessful.
If mediation is unsuccessful, the parties litigate their divorce in court. The mediator should never represent either of the parties if mediation fails.
Anne B. Howard is a divorce attorney and Certified Family Law Specialist practicing in Carlsbad, California. She serves North County and San Diego Courts as well as the Hemet Family Court in Riverside County.