by Hal Bartholomew, Senior Partner Bartholomew & Wasznicky LLP
Certified Family Law Specialist*
Certified Mediator**
Collaborative Lawyer
Frequently, people only know one route to solving their marital issues: hire an attorney, race to the courthouse, and hope your attorney will convince the judge to find in your favor. Divorce is already a painful process even without the continued stress of going to court, requesting and compiling discovery, forming interrogatories, and hiring experts. Litigation can be dragged out for many years and attorney fees continue to climb. Both parties are unhappy about the situation and the stress increases daily because you do not know how the judge will rule, whether you will have to sell your house to settle with your former spouse, where the children will be for the holidays, how to pay for your bills, etc.
The questions keep coming and the answers seem so distant that you are unsure if they will ever arrive. All the while you might have forgotten why you and your former spouse are fighting or whether you are just fighting for the sake of fighting. The positive and respectful alternative to litigation is…MEDIATION!
There are four elements that commonly determine whether a couple should consider mediation:
- Willingness and some ability to communicate with each other
- Good faith intent to deal fairly with each other
- Substantial elements of openness and trust
- A desire for the couple to decide for themselves and be satisfied by the outcome.
Couples primarily select mediation because it is cost effective and a less disruptive method of reaching a resolution.
Although a mediator need not be an attorney, a family law attorney is better able to provide procedural and legal explanations during mediation. With a family law attorney mediator, the couple can go through the mediation process with an understanding of the “shadow of the law.” This means that the attorney can provide feedback to the couple as to what the law states in a particular area of their case. The awareness of what the law provides and the legal alternatives are all part of the total information package needed to make intelligent and informed decisions. Although, the mediator can be an attorney, there is no advocacy for either party; rather the mediator is completely neutral and impartial to the outcome.
With mediation, both parties have control over their own outcome, allowing them the opportunity to think positively and creatively. At any time, a party may choose to hire a consulting attorney. Instead of battling out their disagreements in court through attorneys and focusing only on the past relationship, the couple meets with an impartial mediator that assists them in reaching agreements for their future. A mediator helps the couple reach an agreement regarding the division of their property, custody and visitation of their children, child and spousal support, and any other issues related to the divorce or custody dispute. The mediator’s role is to provide an opportunity for the couple to discuss their concerns face-to-face in a non-adversarial setting, reduce obstacles to communication, and encourage consideration of the alternatives. The mediator does not make the decisions for the couple, but instead acts as a facilitator. The mediator seeks to identify and clarify issues and to move the parties to solutions and resolutions. The mediator may suggest options and alternatives; however, the ultimate decision-making authority stays with the couple.
Preserving some semblance of a relationship between the couple is especially important when there are children involved. The couple will have to continue to communicate throughout their children’s journey to adulthood. Children want both of their parents to attend afterschool events such as basketball games, plays, dances, etc., as well as participate with their education and parent-teacher conferences. If such communication is severed, these events can turn into dreaded instead of joyful ones. Even afterward, adult children have milestones that they would like both parents to attend such as graduations, weddings, anniversaries, and family reunions. If an amicable agreement is reached between the couple, these events will be celebrated successfully without the worry that the event will be ruined by their parents who despise one another.
Besides offering direct participation by the couple and fostering productive communication, mediation gives ease to typical concern for privacy. Unlike litigation, private mediation is completely confidential. Other than documents that must be filed with the court, the entire mediation process is confined to the four walls of the room used for mediation.
Divorce is almost always a difficult process for all persons involved. Mediation is the key to controlling the outcome of your case; it is a positive and more productive way of dealing with such a difficult and emotional situation.
Getting Legal Help
Experienced Sacramento Family Law Attorney Hal Bartholomew can help you navigate your divorce and child custody issues with respect and compassion. Contact Bartholomew & Wasznicky LLP today for knowledgeable and respectful representation. Call us at (916) 455-5200 or email us at info@DivorceWithRespect.com
*The State Bar of California Board of Legal Specialization
** American Academy of Matrimonial Lawyers
