Nearly all California family law judges automatically refer contested cases to mediation, and based on the statistics alone, it is easy to see why. According to the Department of Justice, mediation has a 70 percent success rate. Admittedly, the resolution rate in court-ordered cases is considerably lower, perhaps because many of these parties are simply going through the motions and are not committed to settling their disputes.

Courts depend on mediation, because in order to keep cases moving, the vast majority of them must be settled out of court. If the trial rate went up, courts would become even more hopelessly clogged than they are today. As it stands, only the most high-profile and bitterly-contested cases are tried before a judge.

Parties also depend on mediation, because this process is the best way to lay a foundation for effective co-parenting that keeps families from constantly going back and forth to court.

When Does Mediation Happen?

Procedure varies by jurisdiction, but most judges order mediation almost straightaway and the parties attempt mediation after discovery is entirely or substantially complete. This is especially true in high-asset cases, because it is almost impossible to divide property until both parties have all the applicable information. Many times, there is follow-up discovery to do as well, if an attorney spots red flags which indicate that a party is concealing assets.

If the parties have a premarital agreement, divorce mediation often takes place before discovery. Unless the prenuptial agreement is valid because it was involuntarily executed or unconscionable when it was made, these pacts are virtually impossible to challenge. So, in such cases, there is little point in extending the dispute and amassing legal fees in the discovery process.

In the last few years, some practitioners have preached early mediation as a practical solution even if there is no premarital agreement. According to Steven Fernandez, a divorce and family law attorney in Los Angeles, CA, parties are more willing to voluntarily resolve their disputes early on, as opposed to later in the case when they have dug in their heels. Early mediation also has the aforementioned economic benefit, because the sooner these cases end, the lower the legal bills are.

The Three Cs

A proper environment is key to a successful divorce mediation. Many parties choose mediators who may be very skilled in many areas but lack expertise in family law. Therefore, they do not understand that divorce has an emotional component that is just as significant as the economic one, even in areas like property division. Furthermore, in most civil disputes, the parties go their separate ways after mediation. But divorce with children is different, because the parties must continue to work together, often for years, after the mediation is over.

Similarly, mediation is usually a bad idea if there are deep mistrust issues between the parties. Some mistrust is always present, but if a party believes that the other party cannot be fair, no matter how rational or irrational that belief is, mediation will probably fail. In a few cases, security is a concern as well.

When mediation works, it works very well. Cost savings is one of the biggest, and most quantifiable, advantages. The Department of Justice estimates that mediation saves litigants about $14 million a year. Mediations are much less time consuming than trials, and so those reduced attorney hours usually mean lower legal bills.

Since the parties must still work together, preserving civility is important as well, and mediation often achieves this goal. Mediation is confidential, so no one must “air dirty laundry” in public. Furthermore, during mediation, the parties spend most of their time in separate rooms. So, the environment is less emotional and at least somewhat more civil.

Finally, divorce mediation gives litigants more control over the outcome, and that control increases voluntary compliance. This aspect is especially valuable if one or both parties have issues accepting authority. In many cases, mediation is empowering, since parties reason that if they worked things out once before, they can do so again when future disputes almost inevitably arise.

The Next Big Thing?

Mediation is a litigation supplement, because if this process fails, litigation resumes. Collaborative law is a litigation alternative, because if the parties fail to reach a settlement in this process, they must start over at the beginning with new lawyers.

There are some procedural differences, in addition to the philosophical ones. Mediation is usually a one-day affair, but in collaborative law, the parties meet once a month for as long as it takes to resolve the case. If outside experts are needed, such as real estate agents or child psychologists, the parties split the cost and the experts are beholden to neither party.

Collaborative law has been around for about twenty years but is still used in only a small number of divorce cases in California. However, it is a good option in a few instances.

Under the proper conditions and with the right attitude, mediation and other litigation alternatives are nearly always successful.