Can I Mediate During Divorce Litigation? | By Jennifer M. Segura
We often have potential clients call and ask if they can still mediate even though the case started in (and is currently in) litigation. The answer is ABSOLUTELY! However, it takes self-determination and cooperation between the two litigants. Here are the questions to ask yourself if you are currently in divorce litigation here in San Diego and wish to shift the process and begin mediation:
Can my spouse and I sit in a room together?
This may seem like a simple question; however, if there is a restraining order in place, the answer may be no…even if you feel like you can…legally you cannot. Mediation is most effective if both parties can sit in a room together. However, we can discuss options of individual meetings if there is a restraining order in place, but you still wish to try and mediate. The first step is to call and set up a time to speak with one of our mediators to determine if mediation can still work in your specific situation.
If there is not a restraining order, then the question becomes whether the two of you can sit together and have calm-ish conversations. Keep in mind that having a third-party neutral in the room, helping to guide the conversation can make the difference of being able to sit together or not.
Do we (your spouse and yourself) feel like you agree, but the process has taken on a life of its own, and your voice is no longer being heard?
This is a common complaint we hear from couples who have been in divorce litigation and have come to us to stop the madness. The couple feels they are no longer being notified of proposals from the other side. Vital information is being lost in translation. They feel like they are in the dark and unable to understand where they are in the process. Mediation is a cooperative process. We are all sitting at the table to resolve the issues together. There is less “hide the ball” and more discussion with all parties present. We discuss proposals face-to-face. Whether or not one party has produced a requested document is clear because the document it directly handed from one party to the other party. There is real magic that can happen when the two individuals impacted by the decisions are the ones making the decisions.
Have you spent an obscene amount of money and there is no end in sight…?
Money is always an issue. This is true even if you are both with dependable attorneys who are doing a fantastic job, the cost of divorce litigation is overwhelming for anybody and everybody involved. There are so many factors that contribute to the extremely high cost of divorce litigation. From the clogged court system, delays on the calendars of the parties, the attorneys, the Judges, delays in document production, changes in circumstances as the process evolves…it is truly never-ending. Except if the money ends, then the representation ends. Then the option is… start all over with another attorney? Not likely a real possibility because the funds have been exhausted. Staying married is not an option. So then you turn to friends and family to borrow money; so now you are spending other people’s money. The hole gets deeper and darker…
Here is the thing. Opting to mediate does NOT mean you have to abandon legal representation. You have paid a lot of money to this individual through the divorce litigation process, and that money should not have been spent in vain. We hope to shift the location of decision making from the courtroom to a private office. You are the person responsible for making the decisions from the judge to yourselves. You can still maintain your counsel for legal advice. But instead of using your counsel as to your voice, let’s get back to you using your OWN voice. Your own voice is far more powerful and effective.
If you are stuck in what seems to be never-ending divorce litigation and would like to see what other options are available, give us a call. Let’s see if mediation may be an option for you! Call (858) 736-2411 today to schedule your free initial consultation with our San Diego divorce mediators.