MEDIATION

Mediation is a more private and generally less expensive approach to a dissolution (divorce). It allows parties to resolve the divorce, or certain issues relating to the marriage, in a non-adversarial setting.

A mediator is a lawyer hired by both parties to help them understand and resolve legal and factual issues relating to the divorce. An experienced family law attorney acting as mediator can educate the parties about the law and explain the legal procedures which must be followed for a divorce to occur in California. The mediator is not the lawyer for either party. Where appropriate, the mediator will prepare those forms necessary to begin the divorce process and for final judgment of dissolution.

When a settlement is reached on any or all issues, the mediator will prepare a written agreement which sets out all of the terms of the agreement for the parties' signature.

There are certain statutory limits on what can be negotiated in a marital settlement. Court-ordered child support must be within the statewide uniform statutory guideline. Therefore, any agreement for child support will normally meet or exceed the statutory guideline amount. The Court also retains power to determine what custody/visitation arrangements are in the best interest of the child. In addition, community assets - once identified and valued - must be divided equally if the case goes to court. Therefore, martial settlements rarely result in unequal division.

The parties are required to make the same disclosures regarding their assets, debts, income and expenses that are required in an adversarial divorce.

Mediation proceedings are confidential. The parties sign a confidentiality agreement stating that all communications with the lawyer - mediator are privileged and are not admissible in court. This means, for instance, that settlement offers made in mediation cannot be brought up in court if mediation fails and the case goes to trial. This allows both parties freedom to negotiate without risk that what they discuss will be used against them in trial. If mediation results in a written settlement agreement, however, that agreement will be filed in court and is not confidential. Tran & Wise, LLP can be hired as a mediator by both parties. The parties meet in the firm's San Jose office, rather than appearing in court.