More Comments on Mediation

The previous post was by an experienced and patient attorney that I endorse for mediation cases, and I refer divorcing couples that I believe are suitable candidates to him. But I wanted to add a couple of things to what he said.

Remember his caveat that he does not give legal advice. A divorce mediator must refrain from doing so because that crosses the line from being impartial to the appearance of assisting one side. As a result, many people in the mediation process are left wondering what their legal rights are with respect to specific issues. They don't know what the law provides or what their position should be in the negotiation process.

For that reason, many people in the mediation process will have their own attorney, who does not participate in the mediation process, to give them advice about the various issues and what is appropriate in their given circumstances. That way they feel more confident that the position they are taking is supported by statute and case law.

Some attorneys do not like to advise clients in a mediation process, because they do not have sufficient control of the case. I suspect some also refuse because they cannot make enough money by functioning as an occasional advisor as opposed to a full-time litigator. These people, although without formal mediation training, will likely tell you they can do the same thing for you as the mediator. Don't buy it. Mediation is a different mindset and set of skills than a litigator possesses. That is why mediators have special training.

I have advised many clients who are participating in mediation. Clients pay by the hour for the time they use rather than paying a hefty retainer. I believe it gives the client confidence in mediation, and perhaps provides the client with additional ideas for settlement. One final added benefit is that if the mediation is not successful for any reason and the divorce becomes contested, the client now has an attorney who is is "up to speed" on the issues and able to step into the case without having to spend time familiarizing himself with the issues.

Again, if you are facing divorce and contemplating hiring an attorney, it is probably worth your time to have an honest conversation with your spouse, and discuss whether mediation is right for you. I will try to get Mike to tell us a little about Collaborative Divorce next. Check back to see what he has to say about another alternative to staying out of court.

Divorce Mediation

I’m Mike Jonsson, and I’m the owner of Sacramento Divorce Solutions, a family law firm located in Sacramento.  I've been a family law attorney since 1993, and a divorce mediator since 1998.  Presently, I limit my personal practice areas to divorce mediation, collaborative practice, the representation of children in family law cases, and to being appointed as a Special Master on custody issues.  Other than when I represent children, I no longer engage in traditional divorce litigation.

Divorce mediation is a process in which a neutral professional, usually an attorney like me, assists and facilitates communication between spouses in their divorce negotiations.  I do this by helping my clients communicate openly about relevant topics, and keeping them focused on the real issues at the core of their dispute.  I also provide legal education on relevant family laws and procedures, and help them develop creative settlement options and solutions tailored to help them each meet their needs, and resolve any conflicts they have on property, support, and custody issues.  Please note that even though I am an attorney and provide legal education, I do not provide legal advice; a mediator is not the attorney for either or both parties, but rather a neutral professional that maintains a fair negotiating environment for both clients.

Mediation typically takes three to six sessions, and each session lasts approximately two hours.  Sessions take place in my office, not at Court, which helps create an atmosphere of problem solving, rather than confrontation.  Mediation is a completely voluntary process, in which all decisions are made by the mutual agreement of both clients.  In this way, solutions can be developed so that both clients obtain a reasonable and fair result in their final agreement.  Mediation is the most affordable divorce process, and unlike a traditional representation, after the payment of a very modest deposit, clients pay for mediation services at the end of each session, which allows them to control their cash flow for divorce services.  My office also handles the preparation, service, and filing of any necessary documents and papers.

In recent years, divorce mediation has been hybridized to take advantage of some of the benefits of collaborative divorce practice, in which I’m also trained.  I now also offer mediation services which can include the use of neutral financial experts, known as 'financial specialists', to aid the parties in developing financial plans, and to minimize adverse tax consequences.  And when custody is at issue, I sometimes recommend the use of a neutral 'child specialist', who is a neutral child development expert who acts as the voice of the children in negotiations for a parenting plan.

Please note that divorce mediation is not the right process for everyone.  In situations involving domestic violence, or other situations in which a level playing field for negotiations cannot be established, divorce mediation is not appropriate, and other processes should be considered.

If you have any questions about whether mediation is the right process for your family, please don’t hesitate to visit my website for more information at www.SacramentoDivorceSolutions.com, or contact me for an appointment at (916) 921-7000.

Litigation Attorneys

Most people faced with a divorce hire a family law litigation attorney. One reason is that divorce is a very emotional process for the participants, and they are usually angry, distrustful of the other party, and intimidated or afraid of the process. They don't believe the other side will be reasonable, and feel they need to be aggressive to get what they want.


But a litigation attorney's first objective should be to attempt to reach an agreement with the other party on some or all of the issues. If the parties are able to agree on division of assets and debts, but not custody and visitation of children, then the parties should stipulate to the property division and focus on resolving the custody dispute. It does not help to withhold agreement on property issues and hold it hostage to getting what you want with custody and visitation. Some attorneys do this better than others. 

It takes most family law attorneys several or many years to fully understand the dynamic of divorcing couples, and the emotions that motivate their actions. Often the client is his own worst enemy. If children are involved, those parties will continue to be involved with one another until after the the youngest turns 18, often longer. Given that they will need to continue dealing with one another for years to come, the worst that can happen in a divorce is to make one side or the other so angry they are forever motivated by a desire to get even with the wrong the feel they have suffered.

So an experienced family law attorney realizes his or her client is best served by negotiation and compromise so both parties feel like they have given a little and gained a little. With compromise, the parties maintain control over their lives and those of their children, even though they may not have realized exactly what they wanted. That is almost always better than gambling with formal contested proceedings where at least one side is going to walk away feeling like they "lost" and dedicate themselves to coming back to get even. This is where conflicts escalate and people get locked into the revolving court doors.

Conversely, a litigator also realizes that at times one party or the other simply is too angry or hurt to be reasonable, and compromise and agreement is not possible. For those clients the litigator must protect his client through the court's process. Discovery proceedings can be utilized where one party is unwilling to recognize their obligation to disclose all material facts and information regarding their finances, mediation procedures and trial can be used to implement custody and visitation plans, and motions requesting temporary orders can be used to reduce conflict pending settlement or trial. 

When one side is unwilling or unable to be reasonable, the litigator must protect their client by navigating them through the court process. Sometimes this is the only way to get parties divorced, divide the marital estate, and institute a parenting plan with provisions for future support of the children. But it's a process that usually works.