Frequently-Asked Questions About Child Custody Mediation

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce mediators; California divorce mediatorsMediation of child custody cases involves the presence of a mediator or an expert to resolve the disagreements between the parents on a parenting plan for their children. The parenting plan can then become the custody order. Whether you are based in Orange County, CA or somewhere else in the U.S., here are some frequently asked questions answered about child custody mediation.

  1. How long does mediation take?

Mediation is generally completed in a week or two. It is a lot faster than a court trial which usually takes several months or even years.

  1. How many sessions does it generally take?

It generally takes three sessions of two hours each. In some cases, it may take less than that or maybe more.

  1. Is it a costly process?

Child custody mediation is a lot less expensive than going to the court. Rather than each parent hiring an attorney, the parents can hire one attorney or mediator together.

  1. What if the mediator takes sides?

The mediator is a professional. As such he or she would act as a neutral party and will never pick sides. Instead, the aim would be to help you reach a mutual agreement keeping in mind the best interests of your child or children.

  1. What if I do not get along with my ex?

The mediators are trained professionals so they know how to deal with couples who do not get along. The mediator will work with the two of you separately and will keep on going back and forth until and unless an agreement is reached on.

  1. Are the mediator’s decisions legally binding?

The mediator is never going to decide for you. You will be helped to reach an agreement. So the mediator’s suggestions are not legally binding at all.

  1. What if we do not reach mediation?

Almost all instances of mediation end in complete or partial agreement. If an agreement is not reached, the matter would then need to be settled in court. The decision taken in a courtroom would then be legally binding on all parties.

  1. What after the mediation?

After an agreement is reached on, a document called ‘stipulation’ or a ‘Memorandum of Understanding’ is prepared that outline the terms of the agreement. It then needs to be approved by a judge.

Mediation is a very cooperative process. It is ideal for couples with children.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Does Divorce Mediation Work Even In High-Conflict Situations?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation lawyers; California Divorce MediatorsThe final decision of divorce comes after a long and challenging process. However, if you have made up your mind regarding divorce, you will need a comprehensive plan to guide you towards getting a smooth separation. Mediation can be helpful when you are seeking a divorce.

Mediation: The basics

Mediation is a step in the process of divorce wherein a third (neutral) party will step in to facilitate settlement negotiations. It is important to remember that the mediator does not hold any authority with regards to the resolution. Both parties have absolute control over whether or not an agreement is reached. Even if the parties fail to reach an agreement in the process of mediation, they will continue to retain the right to get their case heard in the court.

There are situations when your divorce case involves a high-conflict partner and you may feel that the only way to deal with to get a lawyer and fight it out. However, statistics reveal that such an approach typically causes increased conflict while offering minimally satisfying results.

High-structured mediation models

For high-conflict divorce cases, you need to select a mediator who has the capability to provide a highly structured process. You will have to question the mediator about the process that he/she is using in cases of high-conflict divorce. Remember, the objective is to look for a mediator with skills, strategies, and experience which are specially designed for managing high levels of conflict.

Caucus

Do not turn mediation sessions into opportunities for ‘venting’. In fact, you must have already done all the “venting” and “reacting” earlier and they have not helped either you or your spouse.

A caucus is essentially a private meeting set with the mediator and a useful way of blowing off steam and regaining composure without damaging any part of the negotiations. In such sessions, a mediator has the opportunity to give you some lessons on how to discuss issues which are important to you in a manner that could be heard.

Parenting issues

In high-conflict divorce cases, couples often fight or argue about details related to visitation, children-related information exchange, and parenting approaches. In such situations, there is a need to modify the parenting plans or approaches in a way that minimizes the exposure of the children to the conflict. For example, when both parents know how to drive, then they should drop the children to one another’s home instead of having the other parent coming to pick the kids up.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Mediating Same-Sex Divorces

Posted by: Gerald A. Maggio, Esq.

Same sex divorce attorneys; California Divorce MediatorsAlthough most of the states in the USA have accepted same-sex marriages, it has not been accepted completely by the country as a whole. As the governments and the judicial system do not recognize same-sex marriages or partnerships, it becomes quite difficult and challenging for same-sex couples to resolve their personal disputes.

Litigation and court sessions are still the most common methods used by same-sex couples to finalize a separation. It goes without saying that these processes are quite expensive and cumbersome.

California accepts same-sex marriages and domestic partnerships and as such there are options for mediation between gay and lesbian couples. Until very recently, only ‘straight’ couples had the opportunity of mediating their divorces. Now more and more mediators are coming up to resolve marital issues in the LGBT community.

Mediation is a lot more economic and an efficient process. It involves the help and advice of a mediator or an expert. The mediator works towards resolving issues between two parties by opening a healthy discussion and helps to reach a common solution that will benefit both the parties.

Drawbacks in same-sex divorces

Division of property and providing for the children are the two most challenging aspects in gay divorces.

Property division becomes very unpleasant because there are no laws laid down by any governing body to determine a proper sharing of the things owned. Due to the absence of such laws, separating couples need to rely on oral contracts or contract laws.

Oral contracts generally give rise to ‘he said’ – ‘she said’ conflicts thereby making the division even more difficult. When it comes to contract laws, no one thinks of signing a contract when in a healthy relationship.

Mediation sessions are always confidential and aim to reach a consensus in an amicable manner. Mediators help to identify and prioritize issues that are causing conflict. Then they guide and advise you on reaching an agreement. The psychologist, who is part of the mediating team, is present at all times.

Same-sex divorces and separations are as emotionally charged and uncomfortable as straight divorces are.  Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Mediation is a Better Option for Couples with Children

Posted by: Gerald A. Maggio, Esq.

Divorce mediators in Orange County; California Divorce MediatorsA divorce is tough for any couple, but add children to the mix, and it becomes a completely different league. In some cases, the parents may come to the mediation session expecting the mediator to sort out disputes regarding the settlements and time sharing arrangements. There have even been cases where the children are made to speak directly with the mediator. It should be avoided at all costs.

Using children

First off, never, ever, use your children as bargaining chips. It is a cheap shot, and if the kids are old enough to see what is happening, they will resent you both for doing it. So keep them out of the sessions, do not use them as roommates, they are not there to get you a better deal through emotional blackmail. Also, certain things will be said and discussed that your children are better off not knowing till they are old and experienced enough.

Avoid making the children choose at all costs. If you put your children on the spot and get the mediator to actually have a session with them and ask them what they want, it normally does not work out well. Children should never have to choose between parents, that is a soul-crushing situation, one that not many can recover easily from.

Another reason why this should not be done is that young children may not be able to see the bigger picture and simply go for the parent who is nice to them, not the one who disciplines them. If the child’s mother is doting and loving and gets the child all the ice cream he or she ever wants, for example, the child may make the choice based on chocolate and ice cream. Children also do not want to disappoint their parents, so a choice is doubly difficult.

A lot of this will and may happen in a litigation process. Children bear the brunt of not only losing their family and the home they grew up in, but also see their parents rip each other up in public, and are often made to go through the same messy battle their parents are having with each other, often about money. While it may not be evident right away, it will get ingrained in their minds. For this and more, mediation is the best way to go with couples with children. They can be kept out of the room, and will never have to see or hear what happens. The news can be broken down and explained to them properly afterwards.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Even If You Are Not Seeing Eye-to-Eye, Mediation is the Better Answer

Posted by: Gerald A. Maggio, Esq.

Orange county divorce mediators; California Divorce MediatorsThere are many cases where the couple seeking divorce have sadly become bitter toward each other.  The split up may have been ugly and now they are ready to just get it over with. It may seem like a good idea to have a lawyer speak to your spouse’s lawyer instead of you actually sitting down with your ex and talk out the terms of separation. Truth is, though, that litigation is not an easy or even quick process, and could take months.

Mediation is the answer 

Even if you are mentally not prepared to meet and sit down with your unreasonable spouse, it may be a better idea to actually sort out all your affairs on your own instead of taking it to court. First off, as mentioned earlier, litigation is a lengthy process. It is also expensive, you are likely to lose a big amount of money to the lawyers, and if the other party is able to squeeze a lot out of you, you will have to pay up.

How mediation works in these scenarios

A mediation session can be arranged after the couple speaks with the mediator by themselves. After they each speak to the mediator, the session can be set up in a safe environment that is neutral. The location can either be an office in a courtroom or other locations specified by the court. There are, however, a few situations where mediation may not be appropriate. If the marriage has been, for example, characterised by physical abuse, mediation may not be the right way forward. That is because the abuser may still be intimidating to his or her partner, and this is a psychological edge that is unfair.

Are you ready and your spouse is not?

Another scenario is one where one party is willing to go through a mediation, but the other one refuses for whatever reasons. It is actually quite common for this to happen. Some people are simply more willing to get it over with. The other side may want to continue the relationship or may have other reasons. It may sometimes be wise to let the other person actually take their time with it and come to terms with the concept that the marriage is actually over. It is a tough decision to make, but the sooner it is made, the easier the recovery process will be.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Do You Have To Go To Court During Divorce Mediation?

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediators; California Divorce MediationBy the looks of it, divorce mediation seems to be the perfect way to settle a divorce, and for the most part and in most cases, it actually is. There are, however a number of questions that you may have about mediation and in this article, we try to cover a few of those related to courts and its role in a mediation.

Will the mediation sessions be held in court? 

Private mediation sessions are generally only held in the mediator’s office, not the court.  The court can also have resource centers,  dispute resolution centers or other such places where mediation can be held.

Do you need a lawyer of your own? 

No, in fact, there will be no one to present your case but yourself. You are encouraged to speak and put forward arguments in a civil manner as to why you expect what from this settlements. The mediator will only take both sides of the case and help you come to your own conclusion. While lawyers are not necessary, they are allowed to help you in taking decisions. The final word comes only from you.

Does this mean mediation is a substitute for legal advice?

No, it is not. In fact, if you need legal advice or if you have doubts that you need clarification on, it is your duty to stop the proceedings and get it clarified. It can be done by the mediator, but if it is beyond the purview of the mediator, an expert has to be brought in and all legal matters cleared up. It is better to delay the sessions by a few days than regretting it for the rest of your life.

What happens if you want to go to trial?

Mediation is designed to work in most cases, but if it doesn’t you do not loose out on the opportunity to go to trial. Litigation is still possible, but it may completely rework or undo all that mediation has built up. At times, that may work out for you, at times, it may not. Nothing is absolute in a courtroom.

In what cases will mediation not a good idea? 

Mediation works in most cases except where there are incidents of domestic violence.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

The Difference Between Divorce Litigation and Mediation

Posted by: Gerald A. Maggio, Esq.

divorce mediation attorney in orange county; California Divorce MediationThere are two ways in which you can go about your divorce settlement. First, you can get your lawyers to duke it out, getting into the nitty gritty of every dirty secret, use everything you have against each other, and finally try to rip off the other party as much as possible, completely destroying ties and any semblance of a relationship at the end of the lengthy, arduous, legal battle. The other option is to have one neutral person sit down, with the two parties across the table, each laying their arguments forward in a civil manner, let logic do the talking and part ways amicably.

That is the first and probably the most important difference between divorce litigation and mediation. Litigation involves two separate lawyers, both with their own vested interests, but divorce mediation involves only one person trying to help you sort out your assets and properties.

Here are a few more differences between litigation and divorce mediation:

  • Confidentiality of the agreed terms
    Litigation involves open court, so there will be court records, open to the public every detail will be put on paper for any one to read. Mediation is a closed, confidential process. While it may happen in a court premises, it is a closed door meeting between two parties. The records will be sealed off for good.
  • Time and cost
    Litigation is a court proceeding, it will take as long as it takes, sometimes months, sometimes years. Mediation will only last as long as the couple want it to last, it most cases, it will be over in an afternoon. Costs are also accordingly varied, the longer it takes, the more it will cost, obviously.
  • Fate of the children
    If there are children involved in the case, the court decides who is awarded the child and how the visitation is planned out. Mediation simply lets the parents decide for themselves.

What should you choose?

While there is a time and place where litigation is the only way, such extreme cases are pretty much the only times you should go for it. Mediation is fast becoming increasingly popular, as, let’s face it, not everyone has the time, money, interest, or even the motivation to go through a lengthy court battle. Moreover, it often makes no sense to drag each other through the mud with a messy divorce, you have already gone through enough.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

Consider Mediation When Drawing Up Your Prenuptial Agreement

Posted by: Gerald A. Maggio, Esq.

Top divorce mediation attorneys Orange County; California Divorce MediatorsPrenuptial agreements are usually a fraught issue in most marriages. When a couple is in love, the last thing they want to think about after their engagement is their prenup, something that tends to ominously portend the end of the very relationship they are celebrating.

So, why get a prenup?

Getting a prenuptial agreement drawn up before marriage can actually help both parties enter the marriage with a crystal clear understanding of each other’s financial situation. Besides, there are many reasons why a prenuptial agreement might even be required. For instance, in the event of a second marriage that involves custody agreements or when one spouse is drawing income from a family trust or when both parties are involved in business together, and so on. In cases when a prenup is required, it might reduce tensions later in the marriage, as all financial obligations are laid out clearly at the very outset.

If it is sensible to get a prenup, why should we be worried?

Regardless of how sensible it might be to get a prenup, it does not change the fact that the process of drawing one up can be distressing and painful for couples. Involving a battalion of lawyers in the process, and getting mired in legal proceedings might only make matters more difficult. Even worse, lots of lawyer involvement in the drawing up of a prenuptial agreement can very quickly make it an unnecessarily complicated and difficult document that can leave one or both parties feeling powerless and distrustful of each other.

How can we get a prenup that does not cause problems?

Considering how fraught the process of drawing up a prenup can be, it only makes sense to seek out the easiest, and most open process for drawing one up. This is where mediation comes in. Mediation allows a couple to settle on and draw up a prenup with a mediator they trust, outside a courtroom and without unnecessarily convoluted legal proceedings.

Mediation brings the couples together to collaboratively communicate and come up with an equitable agreement after in-depth discussion. In this process, couples are able to understand exactly what the other person brings to the marriage, address any concerns they may have with a neutral party, the mediator, and tackle their problems together. Mediation can build trust amongst couples as it demonstrates how potential problems within the marriage can be handled amicably and effectively.

Where do we find a mediator?

Once you decide on mediation, for your prenup, choosing a mediator is the next step. More often than not, divorce mediators tend to be excellent at mediating prenups, and can offer valuable advice. At the conclusion of the process, the mediator, who will also be a lawyer, will draw up a mutually beneficial, and agreeable, prenuptial agreement.

Getting a prenuptial agreement might be the smartest, and most responsible thing that a couple can do before getting married to ensure that they protect each other. Do not let the process of drawing one up weaken your relationship. Find a mediator today to help you draw up your prenup.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

How To Make Joint Custody Work

Posted by: Gerald A. Maggio, Esq.

child custody mediation Orange County; California Divorce MediationIf you are recently divorced and have joint custody of your children with your former spouse, then things could get a bit tricky. However, there is no reason that you cannot have a good, equitable co-parenting relationship with your former spouse for the benefit of your children. By taking decisions together, presenting a united front, and managing schedules well, you and your ex-partner can actually make joint custody work amazingly well. Here are a few things that can help when you share custody of your child.

  1. Remember that your child comes first, always

After a recent divorce, it can be hard to put animosity aside, but it is necessary that you do so if you have joint custody of your child with your former spouse. Remember, a bad spouse does not make a bad parent, and making your child the central feature of all your discussions with your former spouse can help you keep animosity at bay and really concentrate on what matters. Make sure you communicate openly with both your child and your former spouse, and never undermine your former spouse’s parenting skills in front of your child. That said, you should actively expect the same consideration from your former spouse.

  1. Make the schedule work

When setting up a schedule, there are important things both you and your former spouse need to disclose. You need to take all of your commitments into consideration before coming up with a schedule. Discuss and share holidays, school breaks, weekends, birthdays, and more beforehand to avoid unpleasantness down the road. If your child is old enough, involve them in the process. Always make sure that both of you schedule around your child’s schedule. The less disruption there is to your child’s established schedule, the better.

  1. Leave room for change, and review the agreement periodically

This can be difficult to do when coming up with a custody agreement, but it is very important. Leaving room for flexibility can greatly benefit you and your child in the long run. Discuss what happens if either parent has to leave town due to an emergency or difficult career changes cause issues. Be open to changing the agreement when required to ensure that your child gets adequate attention from both parents.

Reviewing the agreement periodically not only lets you form a stronger co-parenting bond with your former spouse but also lets you look realistically at obligations and commitments that both of you have. Age-related adjustments are frequently required, as a custody agreement that benefits your child at age 4 might not necessarily do so at age 10. Make these adjustments as and when needed with your lawyers or mediators.

Remember, having joint custody is an arrangement that can work out well for your child. It can make them feel loved, and secure in their relationships with both parents. Therefore, it behooves both you and your former spouse to make the agreement as beneficial as possible for your child. With a little bit of work, joint custody can be good for everyone involved.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation

How To Get Ready For Your Divorce Mediation

Posted by: Gerald A. Maggio, Esq.

Orange county divorce mediators; California Divorce MediatorsDivorce mediation can be described as the process where your spouse and you, and your respective lawyers, hire a mediator- a neutral third party, as part of your effort to discuss and resolve the issues surrounding your divorce.

This process helps you and your ex decide your own terms of the divorce and what is best for the two of you as well as your children. Mediation helps you resolve your differences and end your marriage in an amicable manner.

Mediation helps you with several issues including child custody, property distribution, retirement, taxes, etc. Couples work out their issues and reach agreements much faster and easier with a mediator. Mediators help keep communication open, create ideas, teach empathy, and help the couple in their decisions. They also make sure you do not go off track and remain focused on your issues.

How can you prepare for your first mediation session?

When your first mediation session is around the corner, it is natural for you to feel nervous, but you need to know that you have made the right choice for your children as well as for yourself. Here are some tips on how you can prepare yourself for your first mediation session:

  1. Pull together all your financial documents including your list of assets, bank account details, mutual funds, retirement funds, stock ownerships, and pending lawsuits, if any. Normally, it is not necessary for you to carry original documents, but you will need to check with the mediator before.
  2. Keep your emotions in check because you are walking into a negotiation process and you need to keep your head clear for this.
  3. Consulting a mediator is a proactive process. So you have to be prepared to negotiate and not argue. Your mediator and lawyer can help you achieve your terms provided they are reasonable.
  4. If you need, make sure your lawyer is around. You might need legal advice during the process, so ensure that your lawyer is present.
  5. You can speak to your mediator alone, if needed. You can address certain issues with just your mediator without having to involve your ex.
  6. Learn your rights, gather information, meet the mediator before so you know the terms of the divorce and the implications involved.
  7. Plan a budget beforehand that includes all your expenses. Make sure it is realistic and reasonable.
  8. Do not hesitate to present your concerns so they can be discussed and cleared.

Divorce mediation is a good step that will help you reach what you need much easier than fighting it out in court. Make sure that all your issues are addressed before you chalk out a divorce plan with your ex.

To learn more about the divorce process in California and how mediation can help, please visit our page, What is Divorce Mediation