I think it is important for the public to know the difference between litigating or mediating their divorce and whether they are, in fact, receiving a mediated divorce if they are using one attorney. Here are some frequently asked questions.
Does My Mediator Represent My Spouse or Me?
No. Your mediator will not represent YOU or your SPOUSE.
Regardless of whether your mediator is, in fact, an attorney or a lawyer themselves, they still will not represent you because they are wearing their “mediator” hat when working with you, and that requires them to act 100% neutral and not take either “side.”
Often I will have clients come in and say, “well, my wife’s attorney said he could mediate our divorce.” This is not a proper mediation. If an attorney represents one spouse, that attorney cannot ethically act as a mediator. Mediation, by definition, is a neutral process. If an attorney has been retained by one party, it is their JOB to represent THAT parties’ interests, not yours entirely. It is OK if the mediator is an attorney, so long as they act as a mediator ONLY and does NOT represent either one of you.
Will My Rights Be Protected in Mediation?
Absolutely, and here is how.
Admittedly, folks out there may hang out a shingle and call themselves a “mediator” when they really do not have the expertise or education to do so. That is why it is important to know who you are working with and know their background.
You want to make sure that the mediator you are working with has the educational background to understand the complexities present in a divorce, especially the financial piece. There are really two main buckets in a divorce; children and finances. A good mediator will take the time to walk you both through the discovery process (in a very informal manner) to ensure all assets and debts are accounted for and properly valued. Instead of being handled in two separate offices, it is all being done together. This creates a far more precise picture of the estate, and voluntarily providing information rather than obtaining it through formal discovery is much more financially efficient.
Further, because mediation is not bogged down by the court system’s stressors, court hearings, deadlines, etc., more attention can be given to what really matters; protecting your family.
The bulk of the mediation is making sure everyone is well-informed with everything necessary to begin to make decisions. We work with many highly regarded professionals, including; attorneys, forensic accountants, Certified Professional Accountants, Certified Financial Planners, Marriage and Family Therapists, Psychiatrists, and more. If any issue surfaces that we think one or both of you will benefit from spending an hour or two with one of these professionals, we will definitely recommend you do so.
And of course, before the agreement is signed, we strongly encourage you to have an independent consulting attorney review your agreement with you to provide a subjective opinion as to the strength of your agreement.
It may sound like the process can get expensive. Even if you need to meet with one or two professionals outside of mediation, it will still be far less expensive than hiring attorneys and litigating your divorce. We have seen litigated divorces in the hundreds of thousands regularly. We have seen them reach over a million in several cases. Litigating is by far the most devastating decision a family can make, both financially and emotionally.
If you are facing a divorce, contact San Diego Family Mediation to schedule a free consultation with one of our highly skilled mediators.
by: Jennifer Segura
