• Attorney Brian Nguyen

Divorce Sucks. But It Sucks A Lot Less After Mediation.

Brangelina just broke up! Ah! Of all the couples in the whole world (or at least in Hollywood), I never thought that Brad and Angelina would be getting a divorce. But they are. But it's not the end of the world. Divorce is not the end of the world. And it doesn't have to be.

Especially if the divorcing couple (that's an oxymoron for sure) decides to voluntarily participate in mediation before or even after filing for divorce. Even though mediation may cut into an attorney's bottom line (the more a couple fights, the more $$ the family law attorney makes), I am a huge advocate of divorce mediation. Even if you can't even stand the sight of your spouse, that is precisely the reason why you two need mediation. Here are the main reasons why mediation comes highly recommended:

1) What is Divorce Mediation? Divorce mediation is about you and your soon to be ex-spouse deciding your own divorce and what is best for the both of you and most importantly, your children. In mediation, you and your spouse meet with a neutral third party, the mediator, and with their help, you work through the issues you need to resolve so the two of you can end your marriage as amicably and cost effectively as possible.

2) It saves time and money. A contested divorce (one that is resolved through litigation or a trial) can cost anywhere between $15K and $100K depending on the nature of of the parties assets and community property, the bitter struggle for child custody, and disputes about child support and alimony. Divorcing parties who participate in voluntary mediation, on the other hand, often wrap up their divorces with marital settlement agreements, completely eliminating the need for litigation. An uncontested mediated divorce could be completed for $5,000 or less (this is just an estimate. every divorce is different) and can take 6 months or less whereas a contested divorce could last anywhere from a year to sometimes even 3 or 4 years. And if there are children involved, child custody issues may drag the parties back to court for up to 18 years of a child's life. You will probably still need an attorney to advise you on the best course of action and to prepare the paperwork, but if the mediation results in the parties reaching a comprehensive marital settlement agreement, your attorney will be more than happy to draft the paperwork and finalize the divorce as quickly and cost-effectively as possible.

3) The Divorce Mediator is Neutral and Objective. The mediator does not choose sides. He/she is at, all times, neutral and objective. And the mediator's recommendations are non-binding, meaning that if one of the parties does not like the mediator's recommendation for child custody, child support or any other disputed issue, one or both parties could end the mediation at any time. However, because divorce mediators are usually practicing family law attorneys, they are permitted and sometimes encouraged to give their opinions on how a family law judge would rule on the parties' dispute(s).

4) Mediation is Confidential. This means that everything that the parties say to each other during mediation cannot be revealed to a judge in a court of law. In other words, husband can't talk to the judge about what wife told him during mediation and vice-versa. In addition, and most importantly, the mediator is not allowed to reveal anything that either party said, during the mediation, to a judge. (a narrow exception exists where a mediator has the option of calling the police or telling the judge if serious child abuse or domestic violence is occurring).

5) Mediation allows the Parties to Work Out their Real Issues. In my experience, divorcing couples usually take each other to court to fight over child custody, child support, division of community property or a plethora of other issues. On the surface, they think that their beef with each other is about the children, the money, or the house. But deep down, their dispute is not really about those things at all. Deep down, the real dispute between the parties is about the past and about hurt feelings. So the parties often go into mediation thinking that the mediator will force them to talk about the legal issues. And divorce mediators (most of them are practicing family law attorneys) do have a firm grasp of family law and child custody law. But they're also trained in being good listeners and will sometimes encourage the parties to leave the legal issues on the table and talk about "what's really going on."

True Story: During one particular mediation, my client was involved in a mediation with his soon to be -ex spouse. Both parties and their attorneys were there. Halfway through the mediation, both parties started crying uncontrollably. But without divulging too much information, the parties were able to address issues from their past and talk about grudges they had held onto for a very long time. It was raw. It was honest. And it was extremely cathartic for both the parties and their attorneys. Truly a beautiful moment. After the "real talk" was over and the parties began to understand each better at an emotional level, it literally only took the parties 30 minutes to agree on how to divide the house and make an arrangement regarding child custody and child support. These beautiful Kodak moments happen ALL THE TIME during divorce mediations.

6) Mediation does NOT necessarily require a Divorce Mediator. I do not encourage this but sometimes if the parties are both in dire financial straits and cannot afford a divorce mediator (it's always worth it in my opinion), sometimes having a neutral family member or a family friend sit down and stand in as a mediator could be helpful to the parties if all three of them can arrange a "sit-down" to talk about the divorce. Although it would be more affordable, having an untrained lay person serve as your mediator would not be as thorough or as efficient or could become chaotic if the family member or family friend were biased towards one party. And since that person is likely not a family law attorney, the mediator would not have enough knowledge to make recommendations about how to split the house, the assets, or how to recommend arrangements for child custody or child support. If the parties insist on using a lay person to serve as the mediator, it would be best to ask someone who has been through a divorce before so that they can at least give you an overview of the divorce process. If you choose this option, it is essential that both parties retain attorneys to advise them and to complete any necessary paperwork to finalize the divorce.

7) Mediation is Ultimately Good for the Children of the Marriage. If a divorcing couple could divorce amicably and do so efficiently, their children would have the most to gain. Numerous studies have shown that children of parents who have divorced amicably tend to be happier and more emotionally stable. Mediation is the difference between a quick and amicable divorce and a divorce that ends up lasting 5 to 18 years due to the parties constantly dragging each other to court because of custody or child support disputes. And the children often get dragged to court and are used as pawns by the spouses to get back at each other. And due to sheer bitterness, spouses will deny visitation and that is how parents end up missing the children's birthdays, soccer matches, and school plays. It's ugly.

To make a long story short, divorce mediation is always worth it. It significantly reduces conflict and almost always leads to amicable divorces. And in my experience, a client who has mediated his disputes with his spouse is a client who never comes back to my office after the divorce is finalized because they never need me again after that. I'm a family law attorney and the less the divorcing couple fights, the less money I make. That's why you can trust me when I say that mediation is worth it ;)

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