The Practical Approach to Divorce
Having participated in a vast number of family law (divorce) cases in many capacities for over 25 years, I have observed realities that rarely occur to the litigants (the parties to the divorce). Too often the anger and emotion of that terrible time in one’s life overwhelms rationality. When that happens both parties lose and when there are children involved, the children lose. Everyone who is involved in the family law system well knows that the only way for the parties to “win” their cases is for them to come to an agreement resolving all issues.
Also, having earned my living as a lawyer paid by clients for representation I very well know that far too often the only winners in a case disputed in court are the attorneys. Remember, they get paid before the parties receive any part of their community property estate or enjoy visitation time with their children.
The term to which I will refer became a distasteful subject for many family court litigants over several decades. That term is “mediation.” Unfortunately, the court and family law practitioners incorrectly referred to that process as “mediation.” That process is imposed upon the parties at the outset of divorce cases in which recommendations were made to the court by family counselors regarding child custody and visitation. Though those cases involved negotiation facilitated by the counselor, that process was not mediation.
Mediation vs. Child Custody Recommending Counseling
Though the name has been slow to catch on, that process is now called Child Custody Recommending Counseling, or “CCRC,” within the court system. It is important that parties involved in or contemplating a divorce understand the difference between mediation and CCRC. Also, it is important to understand that CCRC may be slightly different depending upon the court where one’s case is located.
In some County courts when the parties go to CCRC if they do not settle the counselor simply reports that the case did not settle. If they do settle, the counselor provides a copy of the written custody and visitation agreement to the court to discuss with the parties and to turn the agreement into a court order. In other counties, referred to as “reporting counties,” the counselor will conduct the interview after which the counselor will prepare a report to the court indicating what transpired during the interview and usually will offer a recommendation for custody and visitation to the court. Because those counselors are absolutely overwhelmed with cases, in spite of their best efforts, the parties often leave those sessions feeling as if no one heard them and when the court adopts the recommendation of the counselor (which happens most of the time) that party may feel he or she has not been treated unfairly.
Formal mediation is dramatically different. Formal mediation involves a privately engaged independent mediator experienced in family law. Most are former family law lawyers and some are former judicial officers who presided over family law cases. They charge for their time to assist the parties and to facilitate the negotiation of their case. Unlike CCRC in reporting counties, if a case does not settle the mediator cannot report to anyone. However, if an agreement is reached at mediation, that agreement is submitted and will become an order.
Further, unlike CCRC the parties can select a mediator of their choice who will provide for them all of the time they need to make their individual arguments and he will act as a pathfinder to lead them through the complex maze of family law proceedings. When the parties engage the mediator, they can choose any or all of the issues they wish to have resolved. If they know that they wish to divide tangible property (community property) but are certain they need to litigate child custody and visitation, they can control the substance of the mediation.
Usually the time it will take to mediate an entire divorce case will be perhaps 1 – 3, three or four hour sessions that can be completed within a few weeks and the judgment (many laypersons refer to a divorce judgment as a “decree.” They are essentially the same thing but the term decree is no longer used) entered before the parties can make it to the first court hearing in a litigated case. Obviously, the time expenditure by the parties, plus the monetary cost of litigating, is greatly reduced. Usually, engaging a mediator in mediating one’s divorce case will lead to a much faster and far less expensive resolution.
So then, how do the parties win every time?
The answer may seem elusive but it is obvious. Whenever people make their own decisions about the most important things in their lives, they tend to be far more satisfied with that decision than if they allow someone else to decide for them.
A few years before this article was written, the California courts commissioned a study in which it was determined that family law litigants were provided an average of less than 28 minutes during their entire divorce in front of a judicial officer (obviously, this balances cases in which the case resolved quickly against those who choose lengthy litigation).
Irrespective of how much time family law litigants spend before a judicial officer, that judge or commissioner will never know as much about the parties and their case as do the individuals. In a litigated case people are asking a complete stranger who does not know the children, the real complexities of their property situation or the real interests of the people, to make important decisions involving those matters. All a judicial officer can do is take the facts provided to him or her — “admissible” evidence — and apply the law.
Since the law is written to apply to every citizen in a jurisdiction equally, obviously the result of a judicial determination will actually “fit” in a relatively few of the cases litigated in the courtroom. The common wisdom is that the parties who know the most about their lives, the litigants themselves, should make those important decisions themselves. And that, dear reader, is the purpose of mediation.
The Purpose of Mediation (And Its Advantages For You)
During mediation in a confidential and private setting (as opposed to a public open courtroom), the parties will state their cases to a mediator who will try to determine from each of the parties what they really want and need (their interests) at the end . It is my experience that most people simply want an equitable resolution and the matter to be over with quickly and cleanly . A seasoned mediator will, while not offering legal advice, try to help guide the parties to a resolution they can live with. It is the law in California that while a judge is confined to a tight set of laws upon which he or she may decide, in mediation the parties can agree to many details that a judge cannot order.
In mediation the parties can tailor their agreement, and therefore their divorce judgment, to what they really need and want in a resolution. For example, if a judge makes a ruling that one party must pay the other, and that ruling becomes a judgment, typically the judgment will be just that, i.e., “X” must pay “Y” so many dollars. Then, it is up to the person who is to receive the money to figure out how to collect that money (usually). Commonly, the judge does not have the time or the power to work out payment arrangements or other minute details. Conversely, all of those details can be worked out during mediation including property exchanges in lieu of cash payments.
In my own personal experience mediating family law cases for the courts people have asked me many times after we have spent a few hours to settle a case that has been in the system for years, “why didn’t anyone tell us we could do this before?” I am telling you now. I also want to state that family law mediation is one of the best kept secrets in California.
If you want to maintain control of your case and of your life and to “win” your divorce case the way for you to accomplish that goal is to engage the services of an experienced mediator to assist you and your spouse to find a resolution to this most unhappy time of your lives in a manner with which you can live.