What Is Mediation?
Mediation is an increasingly popular means of resolving marital dissolution and custody issues. It has tremendous appeal and substantial advantages for the parties. It is comparatively non-adversarial, private and confidential, efficient, and economical. It can avoid or reduce much of the expense, emotionalism and divisiveness of the marital dissolution process. The parties decide the results, not a judge or arbitrator.
Mediation Not Always Best
With all of its advantages, however, mediation is not always the best, or fairest, way of resolving the often-complex issues involved in a marital dissolution action. Family law practitioners differ on when, and in what manner, the mediation process should be used. At Virginia H. Gaburo & Associates, we are concerned that mediation can be a trap for the unwary: that one or both of the parties may agree to terms based upon an incorrect assumption or belief as to his or her legal rights; or without knowing the true nature or amounts of the assets and debts being divided. We believe that mediation works best when both parties are represented by independent legal counsel, and are fully informed of their rights under the law; and only after the parties have had ample opportunity to identify and evaluate each of the assets and debts that will be finally distributed.
Unequal Property Distribution Possible
You should know that under California law, and if the parties proceed to trial, the trial judge is required to make a determination as to the value of each and every one of the assets and debts that make up the parties' community property, and to divide the community property equally. The parties themselves however, at mediation or in a settlement, have no such obligation; and are free to agree to any distribution they choose, even if grossly unequally.
Get Help From An Attorney
We strongly advise that if you are contemplating divorce, see an attorney first. Whether or not you choose to use mediation, a lawsuit--that is, a marital dissolution legal action--will have to be filed. Your attorney can inform you as to whether and when mediation is right for you. Simple or non-contested issues, or issues as to which the law is crystal clear, can and should be resolved quickly and easily between counsel for the parties, and should not need a mediator. Reserve mediation for other issues; and use mediation with both knowledge of the law, and knowledge of the facts at issue-especially knowledge of the property as to which you will attempt to reach an agreement.
If you have questions about what "mediation" is, as opposed to "litigation," "arbitration," or "settlement," please visit our Dispute Resolution Alternatives sections on this website.
If your or your spouse is contemplating mediation of a marital dissolution, contact the California Family Law offices of Virginia H. Gaburo & Associates to explore whether and when mediation is right for you.
For more information about California family law, visit the following Practice Area Information Pages on this website:
