How Late is Too Late for Divorce Mediation?

How Late is Too Late for Divorce Mediation?

It is never too late to begin divorce mediation.  Divorce mediation can be useful in every stage of your divorce and beyond.

Mediation Before hiring attorney

The most common use of divorce mediation is as an alternative to divorce litigation (trials).  With mediation in California, the divorcing couple will not even have to go to court hearings or trials.  Hiring an attorney is not required, and in fact, there is a trend toward divorcing without attorney representation.  In divorce mediation the divorcing couple meets together with a neutral third person, the mediator.  Together they develop an agreement for the division of property, child custody and visitation, and financial support issues.  This agreement is called a Marital Settlement Agreement.  This process usually happens before the parties hire attorneys, and often before divorce paperwork is filed.   Many mediators, like The Gentle Divorce, also offer document preparation, service of process, and filing services as well.

Mediation After hiring attorney

If the divorcing couple has each hired an attorney, divorce mediation is still an option.  Many attorneys respect their clients and genuinely want what is best for them and their families.  This desire leads many attorneys to refer their clients for divorce mediation to see if an amicable resolution is possible.  The attorney still represents the client and may or may not attend the mediation sessions.  If they do attend the session, the mediator typically asks the attorney not to participate, but rather to be a silent observer.  When an agreement is made, the mediator will give a copy to each party to review with their attorney before signing.

Mediation During Trial

If the divorcing couple has already begun a trial or divorce proceeding, divorce mediation can still be beneficial.  In fact some states, like Utah, require mediation before a final divorce decree.  California does not have this requirement.  Nevertheless, the courts strongly encourage out of court resolution of divorce issues, and the legislature has been steadily passing laws to make it easier for divorcing couples to resolve their conflicts on their own or through mediation.

If the trial had already commenced, there is likely already anger and frustration with the other party.  It is interesting and often shocking to see how divorce trials bring out the monster in otherwise decent people.  If you observe a criminal trial, you will see bad people on their best behavior.  If you go to a divorce trial you will see good people in their worst behavior.  Coming from that place to mediation is difficult and is usually not very productive.

Divorce mediation is like an old Twinkie left out on the table.  It will always be edible, but the longer it sits there, the harder it gets.  The longer a person participates in litigation, the harder and less effective mediation becomes.  This is because litigation leads to anger, bitterness, and rewards aggressive animosity.   These emotions make mediation more difficult.

Mediation After Divorce

Divorce ends a marriage, not a family.  At the minimum children need their parents to have a working relationship.  Ideally the divorced parents will get along and are friendly toward each other.  Mediation at this stage in a relationship is helpful if a conflict threatens to disrupt that working relationship.  So for instance, the Marital Settlement Agreement states that father has the children every weekend but he got a new job with a different schedule and would like to modify the visitation agreement.  The mother refuses.  Father could hire an attorney, file a motion with the court, and then go to trial to argue about the issue.  Or they could both come to mediation and try to come to an agreement out of court – for less time and a lot less money.

Another situation where divorce mediation is beneficial to a divorced couple is where there is ongoing custody or financial support conflicts.  It can be very expensive, time consuming, and soul sucking to continue these motions and hearings.  Every once in a while the parents in these cases realize how much the legal battle is hurting their children and themselves and just want to be done with it.  Mediation is a great way for parents to put away the swords and come to an agreement that is good for them and their children.

never-too-late-clockBasically it is never too late to benefit from divorce mediation.  However, the greatest time, emotional, and money savings are realized when divorce mediation begins before the legal divorce process begins.  However, depending on the situation, mediation is helpful all through the process and beyond.