California is one of only a handful of states that assumes you and your spouse own all property jointly in the event of a divorce. If you and your spouse rely on the courts to divide your property, this is the point from which the division begins. In addition, if you have children, the court can only do so much, which means that any child custody order may not conform to the unique needs of your family.
This may not result in a settlement that you and your spouse find satisfactory, especially if you have significant assets. If the two of you agree, you could attempt to use mediation instead, which may provide you with the ability to think outside the box and create a settlement that both of you believe is fair.
The benefits of mediation
Mediation aims to remove the contentious and adversarial atmosphere created by a traditional courtroom divorce. It attempts to achieve this goal through the following "rules of engagement:"
- Encourage communication
- Encourage compromise
- Reduce conflict
- Teach conflict resolution
All of these skills may come in handy post-divorce as well, which would provide a solid and amicable foundation for you and your spouse upon which to continue parenting your children together after the divorce.
Mediation can also save you and your spouse valuable time and money when compared to litigation. In addition, it may limit the emotional battles that often only continue to grow in a courtroom. You and your spouse retain control over the contents of your settlement, which you can tailor to the needs of your unique family.
You, your spouse and your attorneys meet with a neutral third party -- the mediator. That individual doesn't make decisions for you, but he or she keeps the negotiations on track and may present ways to resolve issues. During those times when you and your spouse disagree, the mediator may separate you and speak to each of you (and your respective attorneys) alone. The goal is to calm the situation so that you may resume meaningful and beneficial negotiations.
It would be short-sighted and naive to believe that every minute and hour of the negotiation process can occur without some conflict. If that were the case, you wouldn't need a mediator. Having said that, as long as you and your spouse enter into the process with the intent of reaching an agreement that suits both of you, a limited amount of conflict should occur.
Will mediation work for you?
Mediation doesn't work for every couple. Both of you need to commit to working together for the good of each of you and your family. Of course, if you attempt the process and cannot reach an agreement, you may still allow the court to make decisions for you. However, you likely didn't get where you are today by relinquishing control to someone else, and you more than likely want to remain out of court and in control of your own future.
This makes mediation a worthwhile endeavor for many couples. Even if you don't reach a settlement, you may know where each of you stand before entering a courtroom. This could provide a significant advantage and help to streamline the courtroom process. Even a partial settlement could keep you from expending substantial time, effort and money.