Pearce Divorce Mediation

1. What is mediation?
2. What is litigation?
3. How is mediation different from litigation?
4. How is mediation different from arbitration?
5. Who makes the decision in mediation?
6. Can I interview the mediator before agreeing to mediation?
7. How do I choose a mediator? Are they all created equal?
8. Can I ask for references?
9. Do I still need a consulting attorney?
10. How much does it cost?
11. How long does it take?
12. What does the mediator bring to the process?
13. What do the clients bring to the process?
14. What issues can I bring to mediation?
15. Why can’t we do the whole thing in one session?
16. What if I change my mind part way through?
17. Will my spouse be able to coerce or pressure me in mediation?
18. What are my responsibilities in mediation?
19. Why wouldn’t I just want to let the judge decide?
20. Can you give me an example?
21. What are the benefits of working out our own solution?
22. When should I not mediate?
23. Can I talk to the mediator privately?
24. What is caucus mediation?
25. Can I bring my attorney with me?
26. Is mediation confidential?
27. What are my disclosure obligations?
28. If I agree to mediation, does that mean my spouse will be able to push me around?
29. If I get my spouse to agree to mediation, is that a way for me to stay in control?
30. Why do I have to make all the financial disclosures in mediation? Isn’t it supposed to be more informal than court?
31. When do actual negotiations begin?
32. Who does the paperwork for the divorce?
33. Isn’t it easier for my spouse to hide assets and information in mediation?
34. What about telephone mediation?
35. Should I complete the mediation before filing for divorce?
36. What if I think my spouse isn’t mediating in good faith?
37. Why should I pay a mediator when the judge at the courthouse is free?
38. What if we can agree on everything but one issue?
39. Why do I need to know what is likely to happen at court? Isn’t that irrelevant if I’m in mediation?
40. What causes delays in mediation?
41. What if my spouse wants to move at a different pace than I do?
42. What can I do to make the mediation most effective?
43. What if my case is too complicated for mediation?
44. Will I still have to go to court?
45. How does the mediator get paid?
46. What if my circumstances change after I reach an agreement in mediation?
47. What does the research on mediation say?

1. What is mediation?
Mediation is a voluntary, flexible, non-adversarial and confidential process for resolving your divorce or other family law issues with the help of a neutral mediator who will assist you in reaching an agreement. The mediator is not a judge or arbitrator, [See FAQ #4] and cannot force anyone to do anything. Any agreement which is reached must be acceptable to both parties. You and your spouse retain complete control over your family law matter and can be far more creative than the courts in designing a solution that works for your family. The entire tone of mediation is one of working together to reach a solution rather than trying to vanquish or destroy the other party. There is usually great power in the negotiation and discussion by both parties together in a neutral setting.

2. What is litigation?
In litigation, each side (with or without attorneys) prepares by conducting discovery in order to get the weapons with which to attack the other party and win the legal, economic and psychological war. The system itself often encourages and rewards such tactics. Depositions of friends, family, business associates and subpoenas of reams of documents are scrutinized, as the parties criticize the other’s role as parent and spouse. Many people blame the attorneys for the cost and the wreckage, but it is usually the clients, the parties themselves, who direct their attorneys in an attempt to obtain vindication. All of this is done in a gamble to convince someone (the judge) in a public arena, who knows very little about them (except that they are willing to go to war) to grant them a “victory” (however that is defined.) By engaging in war, litigants grant a total stranger the power to make the ultimate decisions about their and their children’s lives. Litigation is often associated with military terms, “going to war,” “victory/defeat,” “scorched earth,” and the like. For many high conflict couples, this seems rational, since each party can only see their side of the issue. They assume they will be vindicated and the other party will be punished, often for some perceived misconduct which is outside the court’s jurisdiction. The reality is that most parties leave the courtroom feeling unsatisfied. And the next issue which pops up will be fought just as hard, as each party tries to make up for what they perceived they “lost” in the last round. Like real war, divorce war is extremely expensive, not just in the attorney fees and out of pocket costs, but court costs, witness expenses, and psychological and emotional wounds, both to the litigants and their children.

3. How is mediation different from litigation?
In litigation, each party presents his or her “case” to the judge, and the judge decides who “wins” and who “loses.” In contrast, mediation is a voluntary, non-adversarial and confidential process in which the parties, with the assistance of a neutral mediator, jointly make the decisions which will impact their and their children’s lives. The mediator cannot order either party to do anything, and any agreement reached must be acceptable to both parties. It is faster and less expensive than litigation, helps people learn to cooperatively solve their problems rather than attack each other, and results in much greater satisfaction with the ultimate result.

4. How is mediation different from arbitration?
In arbitration, a neutral third party is hired to make the decision for you. Although it is usually more informal than litigation, it is still much more like traditional litigation than mediation. In mediation, you and your spouse work out the agreement with the assistance of a neutral mediator. The mediator doesn’t make the decision for you.

5. Who makes the decision in mediation?
You and your spouse jointly make the decision in mediation. Lee isn’t the judge or arbitrator. For that reason, it isn’t a good use of his time or your money to try to “convince” him that your position is “right.” Your energy and time are better spent discussing creative solutions to your legal issues.

6. Can I interview the mediator before agreeing to mediation?
Since the mediator is acting as a “neutral,” that is, not representing either of you, he generally won’t talk to either of you outside the presence of the other without the advance knowledge and consent of the other party. If you are considering mediation, you and your spouse should jointly interview the proposed mediator, to be sure you both feel comfortable, not only with the mediator, but with the process. That is the time to ask all of your questions about mediation, your mediator’s qualifications, and the pros and cons of mediation in your situation.

7. How do I choose a mediator? Are they all created equal?
Done correctly, mediation is a very creative process. Most mediators have specific training in mediation techniques, and keep those skills current with annual professional education. That being said, as with any other profession, there is a wide variation in education, skill, experience, style and creativity among mediators. You should consider all of these factors, as well as the following:
a. How much of the mediator’s practice is actually devoted to mediation? Ideally, you want a mediator who devotes a substantial amount of time to mediation, rather than someone who only does it as an occasional sideline to litigation. Lee limits his practice entirely to working as a “neutral” and does not accept litigation clients.
b. How much experience does the mediator have in cases just like yours? You wouldn’t choose a real estate mediator to mediate your family law issue, or vice versa. Similarly, if you have complex property or custody issues, you will want a mediator with a thorough background in those areas.
c. How does your mediator describe the process? Your mediator will describe the process of mediation in the initial consultation. This is valuable information not only to educate you on what to expect, but on your mediator’s preferred way of proceeding.

8. Can I ask for references?
No, you can’t. Since mediation is confidential in California, The mediator cannot reveal the names of others whom he has assisted as a mediator.

9. Do I still need a consulting attorney?
Your mediator, although an attorney, does not represent either of you. He doesn’t give you legal advice. Some people elect to proceed without a consulting attorney (in “pro per”). However, it is always a good idea to consult with an attorney before entering into a legally binding document to ensure that you fully understand the legal consequences and their impact on you.

10. How much does it cost?
You pay your mediator by the hour, so the cost is solely determined by how many sessions you schedule and how much drafting you ask the mediator to do. The complexity of the issues and the ability of each party to negotiate will also impact the cost, and each party’s cost for their consulting attorney depends on how much time they spend with their consulting attorney. Generally speaking, litigation will cost from three to twenty times as much as mediation. The monetary cost is measured in dollars, which directly reduces the size of the estate being divided. The emotional cost is measured by each individual. The adversarial battle in litigation exacts a huge toll on the parties and their children.

11. How long does it take?
Typically, there are four to five meetings lasting one to two hours and spread over two to three months. The timing of these meeting is usually dictated by what information needs to be gathered or what work done before the next meeting. The goal is to go as far as possible in a session. There is frequently reach a point where no further progress can be made without more information, such as the value of the house, or details of the pension plan. After identifying what is needed to move forward, each party will be given a “homework assignment” [See FAQ #42] to gather information before we reconvene. If you have all of your information together, the meetings can be scheduled quite close together. If not, you may need to wait for a real estate appraisal or business valuation before taking the next step.

12. What does the mediator bring to the process?
Lee brings extensive mediation experience, thirty three years of family law experience, and a thorough knowledge not only of California family law, but of the judges at the courthouse and how they may rule on specific issues. The most important asset is his mediation training, his experience helping couples reach agreements, and his ability to devise creative solutions to divorce problems which work for both parties.

13. What do the clients bring to the process?
You bring your unique family to the process. No two families are alike, and no one knows your children, your assets, income, and property better than you do. With this, you are able to craft a unique solution tailored to your issues and needs, and you are not required to accept a “cookie cutter” solution designed to fit someone else’s family.

14. What issues can I bring to mediation?
Literally all aspects of family law are potential subjects for mediation. These include property characterization, valuation and division, stock options, pension rights, business valuation, separate property claims and tracing, child and spousal support (“alimony”) child custody and parenting rights, and any other issue presented by a family law proceeding. Other subjects outside the litigation context are similarly good candidates for mediation. These include premarital agreements, post-marital agreements, payment of college expenses, and any other issues requiring agreement by both parties. Additionally, you and your spouse can agree to bring any post-dissolution disagreements to mediation. Since support and custody often change and existing court orders may need to be modified, this is a good use of mediation.

15. Why can’t we do the whole thing in one session?
You will be covering a lot of information in each session. After years of doing mediations, Lee has concluded that it is important for people to step back and think about it periodically to be sure that they understand and agree with the course being taken. A lot of ground can be covered in two hours, and it is easy to reach information or emotional overload. Remember, the goal of mediation is to reach a joint agreement which works for both of you. Coercion and duress have no place in mediation, and Lee will make sure that no one is being coerced [See FAQ #28] or pressured into making an agreement against their will.

16. What if I change my mind part way through?
The whole point of mediation is to work out your solution to your legal issues. You will be making partial “conditional” agreements from time to time throughout the process. However, as many of the issues are interrelated, none of these will be final and binding until the entire agreement is put together. Only in that way can you and the mediator be sure that everyone understands the agreement and is entering into it voluntarily and with full knowledge of its effect.

17. Will my spouse be able to coerce or pressure me in mediation?
No. Lee has extensive training in “leveling the playing field.” This is done in a number of ways. He will ensure that each party has equal access to the information required before they make an informed decision. He will not allow threats, coercion or artificial time pressures to impact the integrity of an agreement.

18. What are my responsibilities in mediation?
As the client, you have several responsibilities. You must sincerely desire to reach a joint solution, and participate in good faith. You must make full disclosure of all relevant facts which are known to you so that your spouse can make an informed decision about any agreement. You are responsible for your “homework assignments” [See FAQ #42] so that your money and the mediator’s time isn’t wasted if you come to a follow-up meeting without have gathered the information you will need to discuss possible agreements meaningfully.

19. Why wouldn’t I just want to let the judge decide?
Over the course of the mediation, you will be spending many hours with the mediator, discussing all aspects of your divorce case. No one will limit the time you need to explore all possible solutions before agreeing on one. In mediation, you can think creatively and make an agreement which the judge couldn’t order at court. Most litigants don’t realize that the judge’s power is really quite limited, and there are many solutions which may make perfect sense for your case, but which exceed the judge’s jurisdiction. Also, while Lee will spend a number of hours with you and your spouse getting to know all aspects of your case, the judge doesn’t have that kind of time. You are lucky to get an hour or two with the judge. If you aren’t successful at mediating your divorce with the assistance of a neutral mediator, a stranger in a black robe, who knows much less than the mediator does about you, your family, and your estate, will be imposing a decision on you.

20. Can you give me an example?
Yes. For many families, the major asset is the house. Since California law requires that community property be divided equally, the judge is generally left with only two options: award the house to one party at a specific value and award other assets of equal value to the other spouse, or order it sold. If you don’t have assets of equal value to award the other spouse, the house will almost always be sold. You have many more options in mediation: you can agree to remain co-owners for a specified period of time, deferring the sale to a specific time in the future. You can award the house to one party subject to a promissory note to pay the equalizing payment over time. You can get even more creative, and Lee will work with you to explore which solutions might work best for you.

21. What are the benefits of working out our own solution?
There are many potential solutions to any legal issue. Unfortunately, the courts are usually limited to one or two. You and your spouse may be able to devise a creative solution which works for you and which wouldn’t be available at court. People are often told to “think outside the box.” In mediation, there is no “box.” The only limitations on what you can do are imposed by certain tax and other rules.

22. When should I not mediate?
There is rarely a circumstance when you wouldn’t be well advised to try mediation first. Even if there is a history of domestic violence, or if one side is overbearing, you can usually accomplish something in mediation. Even if you can’t resolve the whole case, a partial mediation will reduce the number of issues you have to take to the judge. That in turn reduces the amount of money you have to pay your attorneys, and means the judge’s time is most efficiently used by focusing on the issues that you are truly unable to resolve by agreement. You may not want to mediate if there are existing court orders restraining contact between the parties. Sometimes one of the parties feels the need for more protection or structure, or control in the process. And sometimes one party wants to make a point, or pursue a “legal” right with the goal of punishing the other party. These cases would not be good candidates for successful mediation. Another situation where mediation is generally not recommended is where one party is unable to give informed consent to an agreement due to impairment, whether caused by mental health issues or substance abuse.

23. Can I talk to the mediator privately?
Generally not. One of the reasons Lee will want to talk to both sides at the same time is to be sure that you both hear the same words. Since understanding and informed consent are critical to mediation, and misunderstandings do occur, it is important to be sure that both of you hear exactly the same words from him at the same time. There is usually great power in the negotiation and discussion by both parties together in a neutral setting. This is also true in talking to your consulting attorneys. If they want to talk to the mediator, they will be asked to set up a conference call at a time when both of them can be on the line. The one exception to talking to the mediator privately is caucus mediation. [See FAQ #24]

24. What is caucus mediation?
If you and your spouse agree, or if there is a history of domestic violence or an inability to be in the same room together, you can each meet privately with the mediator in caucus mediation. In that way, you are each able to more freely share your concerns with the mediator, and Lee will share only as much information as you give him permission to with the other side. This usually involves each party in a separate room. Note, however, that the information referred to here is your personal goals and desires. Caucus mediation is not a mechanism for withholding substantive financial and other data which you are required by California law to disclose, nor is it an opportunity to get the mediator on “your side.” Caucus mediation is an opportunity to be creative, explore novel solutions, and speak more freely.

25. Can I bring my attorney with me?
If you wish, you can bring your consulting attorney with you, or you can consult with your attorney between sessions and take any agreements to the attorney to review before making a commitment. Some people feel more comfortable with their attorney in the room. The other side may also bring their attorney if they wish. However, if you elect to bring attorneys, this will not be allowed to turn into an adversarial proceeding. It is still mediation, even if attorneys are present.

26. Is mediation confidential?
Yes. In California all mediation is private. That means that if you are not able to reach an agreement, the other side can’t later use what was said in mediation against you in court. This policy is designed to encourage people to resolve their differences by mediation, which they are more likely to do if they are not afraid of speaking freely, for fear what they say will be used against them later. However, certain required documents which are prepared in mediation do not remain confidential.

27. What are my disclosure obligations?
The State of California has imposed stringent disclosure obligations on everyone going through a divorce. These disclosures are required to make sure that both parties have access to the same information, to be sure that they have equal opportunity to protect their rights. These same disclosure requirements apply in mediation, and Lee will assist you in filling out the necessary paperwork, if you wish. When in doubt, it is always a good idea to err on the side of disclosing more rather than less.

28. If I agree to mediation, does that mean my spouse will be able to push me around?
No. One of the first things a mediator is trained to do is to be sure that the parties are operating on equal footing. [See FAQ #17]

29. If I get my spouse to agree to mediation, is that a way for me to stay in control?
No. By definition, a mediated agreement is a joint agreement, entered into after full disclosure, and without coercion or duress. If both of you don’t agree, you go back to the courthouse and take your chances there.

30. Why do I have to make all the financial disclosures in mediation? Isn’t it supposed to be more informal than court?
It is more informal than court. However, the integrity of any mediated agreement depends on each party having full disclosure of all relevant information before consenting to the agreement. Also, the laws of the State of California not only mandate full disclosure, including ongoing duties of disclosure throughout the course of the proceeding, they impose severe penalties for litigants who fail to make full disclosure. That is why it is always a good idea to err on the side of caution and disclose everything, even if you think it isn’t relevant.

31. When do actual negotiations begin?
Actual negotiations don’t begin until the exchange of information and documents is sufficient to ensure that both of you are negotiating from a position of relative equality.

32. Who does the paperwork for the divorce?
With one exception, that decision is up to you. You and your spouse can do it, or one of your consulting attorneys can do it. Most couples opt for Lee doing it. The one exception is the Marital Settlement Agreement (“MSA”). If you and your spouse reach an agreement, a formal written document is prepared. Lee insists on drafting this document himself. His reason is a good one. He knows what the agreement was, including its intended legal effect, because he was present at all of the negotiations which led up to it. It is impossible (and expensive) to try to explain all of the give and take to one of the consulting attorneys and expect them to get all of the terms right.

33. Isn’t it easier for my spouse to hide assets and information in mediation?
No. You each have all of the same disclosure requirements [See FAQ #30] in mediation as in litigation. One of the first things that will happen in mediation is the exchange of all relevant information, and the creation of a process to obtain and exchange any additional information which you haven’t obtained yet. There is generally no formal discovery, as information is exchanged informally. If that exchange of information doesn’t happen, you should return to a more formal venue where you can enforce your rights to obtain all relevant data.

34. What about telephone mediation?
If you or your spouse lives at a distance, you can have mediation by conference call. Even if you live nearby, if the issue is such that the session will be brief (fifteen or twenty minutes), you can ask for a conference call so that you can save the time of going to Lee’s office.

35. Should I complete the mediation before filing for divorce?
Most people know that it takes six months to get a divorce in California. That time period doesn’t start running until one party (the Petitioner) serves the other party (the Respondent) with a Petition for dissolution. Most couples want to get the time running as soon as possible. Since the mediation may take two or three months, if you wait to file the Petition until after the mediation is concluded, you may be unnecessarily delaying your divorce. There are often tax reasons to get the Petition filed and served. If it is the first half of the year, and you want to preserve the possibility of filing as a single person for federal and state income tax returns for that year, you will only be able to preserve that option if the Respondent is served with the Petition prior to June 30th. You generally won’t know early in the year whether you will want to file jointly or as a single person, and one or the other method may have significant tax benefits, depending on what agreements you and your spouse reach. However, if you don’t preserve the option by filing and serving at a time which will allow the six months to run before December 31st, you won’t have the ability to file as a single person.

36. What if I think my spouse isn’t mediating in good faith?
You always have the option of returning to the public courts (or a private judge) if the mediation fails. Mediation requires that both parties participate in good faith. If one of the parties is not, then mediation is not going to be successful. Lee has, on more than one occasion, advised couples that they are not good candidates for mediation.

37. Why should I pay a mediator when the judge at the courthouse is free?
Although mediation is much less expensive than litigation, it isn’t just a question of cost. You have many more opportunities to craft creative solutions to your legal issues in mediation, since the remedies available to the judge are generally quite limited. You also have as much time with the mediator as you need. It is rare to have more than an hour or two with a judge at the public courthouse. Since you will be living with the consequences of your divorce for the rest of your life, isn’t it better to have a thoughtful solution tailored to your case than be stuck with a decision imposed by a stranger in a black robe who, with the best intent in the world, really doesn’t know a thing about you? Wouldn’t you prefer to make your own life decisions rather than having them forced on you by a stranger? And finally, most couples who fall out of mediation and litigate at court spend a lot more money on the litigation than they would have spent in mediation. This just reduces the marital estate which is ultimately divided between you. Given this choice, most couples prefer to hold on to as much of their estate as they can rather than pay it to third party professionals.

38. What if we can agree on everything but one issue?
Should we just take the whole case to the courthouse? Even if you can’t agree on everything, you are better off mediating what you can agree on, and only taking to court (and paying to litigate) the issues you truly can’t resolve in any other way. Court is always a last resort, not a first.

39. Why do I need to know what is likely to happen at court? Isn’t that irrelevant if I’m in mediation?
It is very important to know what the “default” is, that is, what is the likely result if you just take your issue to court. Only then can you know whether the mediated solution is more attractive. Also, because of his years of family law litigation, Lee can tell you what the judge (with limited jurisdiction) is likely to do on your issue. Depending on which judge you are assigned to, he may be able to tell you what your particular judge would be likely to do on a specific issue. If the result you are trying to get in mediation is one you can’t get at court, why would you not keep trying to work it out creatively?

40. What causes delays in mediation?
Most delays are caused by people not doing their homework assignments [See FAQ #42]. If they have gone as far as they can without additional information, and they don’t get that information before the next session, valuable time is lost. Sometimes there is a good reason to delay, such as holidays and vacations, preservation of health insurance if someone is ill, or tax considerations.

41. What if my spouse wants to move at a different pace than I do?
This is a common situation. It is rare for both parties to want the same thing at the same time. Since mediation requires active participation of both parties, you have to agree on the pace. Otherwise, it simply doesn’t work.

42. What can I do to make the mediation most effective?
Provide all information promptly and completely. Make sure you do your homework assignments between sessions. Much valuable time is lost waiting to get information or documents from third parties or institutions (banks, credit card companies, etc.). The more of this you can gather at the outset, the more efficiently you will use the mediator’s time.

43. What if my case is too complicated for mediation?
No case is too complicated for mediation. In fact, the complicated cases are the ones which are least likely to get sufficient time at the public courthouse. Lee has thirty years of experience in all areas of family law, and can help you in obtaining assistance from CPAs, appraisers, financial planners, tax advisors, custody evaluators, co-parenting counselors and other professionals whose input and advice may be necessary prerequisites to a negotiated settlement.

44. Will I still have to go to court?
The goal of mediation is to avoid the courthouse. Once a complete agreement is reached, it will be submitted for approval and signature by the court, but you will not have to personally appear.

45. How does the mediator get paid?
The mediator charges by the hour, and each side pays half. You will each be expected to pay for your half at the conclusion of each session, either by check or credit card. Sometimes you will agree that Lee will do additional work between sessions, such as drafting paperwork or filing papers with the court. If you do, that cost will be settled at the next mediation session.

46. What if my circumstances change after I reach an agreement in mediation?
Family law is a very fluid area. Children grow and their needs change. Jobs and finances change, requiring a review of support agreements. Most mediated agreements recognize that this is possible and provide that if such issues arise in the future, the parties agree to return to mediation to try to resolve them before filing a motion with the court. This means that you don’t automatically have to go to court if your circumstances change. You simply apply the same mediation process to the new issues.

47. What does the research on mediation say?
There have been many studies which clearly show that mediated divorces have long term positive effects on the parties and their children. The use of a non-adversarial process helps the parties learn to work together and communicate with each other, not only to resolve their divorce issues, but future issues which may come up…and if there are children, future issues will come up. Studies which compare mediated divorces with adversarial ones consistently demonstrate that the mediating parties took less time, spend less money, were more satisfied with the results, and were more likely to comply with the agreements reached. Since enforcement is always a potential problem, this is a particularly significant benefit of mediation.