This blog posting represents the third part of a five-part series. In the first part, The Most Basic of Family Court Proceedings - Divorce, was an overview of the options or choices that people have in California if they choose to divorce. That overview stated that there are four methods by which Californians go through that process. Those four methods are: 1) litigation; 2) mediation; 3) collaborative divorce; and 4) cooperative divorce. My last blog posting was about the litigation option, Methods of Divorce, Part 1 - Litigation. This blog post is about mediation.
Mediation is probably the most popular form of alternative dispute resolution or “ADR.” Mediation uses a neutral that assists the parties in coming to resolution of whatever disputes are between them. But unlike other neutrals, like judges or arbitrators, the mediator does not make the decision. The parties make the decision. The method, therefore, is very empowering to the people who use it. The mediator uses his or her skills, training and experience to assist the parties in coming to a productive resolution of their disputes.
In family law, there are four “models of mediation.” There is a “three-person model,” “a five-person model,” “a three-person plus model” and a “four-person model.”
The three-person model is the simplest and most popular. In the room are just the mediator/neutral and the two parties. Because the mediator is a neutral, potentially that neutral’s office personnel can prepare all the paperwork or required documents for both sides. Technically, both husband and wife or domestic partners will remain listed as being “in pro per” or self-represented on the documents going to the court. The neutral mediator does not represent either side.
The advantages of the three-person method is that it is simple, straightforward and usually takes the least time. It is also generally the least expensive. However, if the mediator offers any opinions, there is no second opinion. Other options involve more than just one professional and, therefore, more than one professional opinion will be considered.
The five-person method involves both parties participating in the mediation with a lawyer who represents them. The five persons are: husband or domestic partner; wife or domestic partner; husband’s lawyer; wife’s lawyer and the neutral mediator. The disadvantages to this method is that it is generally more expensive and more complicated than the simpler three-person method. There are more voices to be heard and negotiations are generally more complex with more people involved in the discussions. However, when professional opinions are offered, three professionals are heard and a variety of viewpoints will likely be expressed. Because more professionals are being compensated, generally the five-person method is more expensive and takes somewhat longer.
The three-person plus method seeks to combine the other two. Only the husband and wife are in the mediation room with the neutral mediator. However, both husband and wife have a “consulting attorney” on the outside. Throughout the negotiations, both spouses will meet and confer with their consulting attorneys. At the end of the case, if a full agreement has been reached, the consulting attorneys will normally review the final agreement documents. This method has some of the multi-professional input, like the five-person-method, but is less expensive and less complicated, similar to the three-person method.
The final method is a four-person method which involves both an attorney and a mental health professional. Usually the “team mediators” are of opposite genders. It is a more holistic approach to divorce. Although everyone will be working on everything together, the lawyer can provide more expertise in the tax and legal areas while the mental health professional provides their knowledge in the psycho/emotional part of the marital breakup.
Parties using divorce mediation generally report that it is cost effective and empowering.
Our law office offers to clients the choice of all four models of mediation and is available to answer any readers’ questions about any of the four methods. Attorney Klueck is a Credentialed Mediator credentialed by the National Dispute Resolution Center (NDRC). Please contact us at 619-448-6500 or through our web site which is: www.familylawsandiego.com
The next blog posting will discuss the divorce method called collaborative divorce.
Garrison “Bud” Klueck, CFLS, MA, JD is a principal at the Law & Mediation Offices of Garrison Klueck. Garrison can by reached at (619)448-6500 and garrisonklueck(at)yahoo.com
Read more Family Law Blog postings.
Tags: divorce, family law blog, garrison klueck, litigation, mediation, SDNN
Comment by: Paula Lawhon Posted: October 19, 2009, 12:55 pm
Thank you for a clear explanation of the mediation options available to divorcing couples and for letting couples who want to involve their attorneys more (or less) know that they have that option in mediation. As a divorce mediator in San Francisco, I enjoy the fact that the mediation process can be easily tailored to the specific needs of each couple; it is one of the ways in which mediation never seems to feel like a one-size-fits-all approach.
Paula Lawhon