(Frequently Asked Questions)


Divorce Mediation

What are the steps involved in mediation?

The first session is informational: you find out about me and how I work, and I begin to learn about your needs and concerns. The second step is to develop a list of the issues to be decided, the information to be gathered so that you can make informed decisions about those issues, and assign “homework”, i.e., who will be responsible for gathering what information. The third phase is information sharing: we share all of the information gathered, determine whether more information is needed, and ask questions to be sure that both of you understand all of the financial information. We may bring in other professionals to help develop or explain some of the information (these might include real estate or other asset valuation, tax information, child development professionals, etc.). Once we have all of the necessary information, we brainstorm options to settle all of the issues. Once you reach agreement on the issues, the mediator will write a Memorandum of Understanding (MOU), which you can take to your attorney for review and incorporation into the formal divorce paperwork that will be submitted to the Court for final approval. 


How long does mediation take?

After the initial ½ hour introductory session, I schedule subsequent sessions for 2 hours, though you don’t have to use all of the time if you don’t need it. Cases take on average 3-4 sessions, though depending on the specifics of your case, you might need more or fewer sessions. One of the advantages of Mediation is that you determine the pace and timing, rather than have it dictated by a court or the attorneys. We can move as quickly or as slowly as you need. Every case is unique and each family has different needs. Some clients come in with almost everything worked out, and it only takes two sessions; I have done “marathon” divorce mediations in two full-day sessions; other couples wanted to move more slowly, and their cases took several months to complete.


How will I benefit by using the mediation process over a traditional litigated divorce/separation?

In mediation, YOU are the deciders of the outcomes for your family and YOU are in control of the process. Mediation takes less time, is less stressful, and costs less than litigation. Mediation: helps you find solutions that benefit both of you as well as your children; is based on voluntary full disclosure; and focuses on your future. In contrast, in litigation the focus is on winning the most for your side, hiding information, and making you look good while making the other person look bad. You also have the option of trying out temporary arrangements before committing to a final solution. And, you and your soon-to-be-Ex can learn some communication and problem-solving skills that may prevent, or lessen, future conflict between you.


Do I still need an attorney?

I strongly recommend that all of my clients seek the advice of an attorney of their own choosing at some point during the mediation process, so that they can make decisions with full information about their legal rights and obligations. I also recommend that my clients have their MOU reviewed by an attorney. The attorney can then convert MOU into a legal document of separation or divorce and file it with the courts. I can refer clients to attorneys who understand and support your desire to settle your divorce without hostility and who will not whip up a legal fight unnecessarily. Often, the legal consultation involves no more than a couple of hours.


How can I be sure that my rights will be protected?

While this may seem obvious, it is worth stating explicitly: BOTH parties need to agree in order to reach agreement. As with court outcomes, it is unlikely that everyone will get all of what he or she wants. It is likely that you will have to compromise in order to reach an agreement, giving the other person something that is important to him/her in order to get something that is more important to you. It is the mediator’s job to guide your conversations through all of the issues that need to be decided, to encourage the full disclosure of information, and to help you make fully informed decisions. I also strongly encourage you to obtain legal advice from an attorney of your choosing so that you know what your rights and responsibilities are before you sign anything. You will decide whether you want to pursue certain rights, or waive some in exchange for something else that is more important to you.  In the end, no agreement will be reached unless both of you agree.


I want to mediate, but my spouse does not: what can I do?

It is best if couples come in together for their initial session. Your spouse may not be as far down the emotional process or have come to terms with the break-up. Reassure him/her that the first meeting with the mediator is purely informational and educational. It is completely voluntary. After that initial meeting, there is no obligation to return if you feel that mediation is not a good fit for your situation. If your spouse/partner is unwilling to come to the first session, you may come on your own and, if you decide that you want to continue with mediation, I will meet with your spouse /partner alone as well so that s/he feels completely comfortable with the neutrality of the mediator and with the process. If your spouse/artner is more inclined toward litigation, you could try to talk to him/her about the advantages of choosing mediation instead: keeping in mind that the vast majority of divorce cases settle without going to trial, by starting with mediation, you will find that it's quicker, confidential, likely less expensive, allows for more individually tailor-made solutions, is less destructive of your relationship, keeps your children out of the middle, and is completely voluntary. If mediation doesn’t help the two of you arrive at a mutually acceptable resolution, you can always go to court later.


Are there cases that should not be mediated?

If there has been abuse in your marriage, whether physical or emotional, it may be difficult to be in the same room with your spouse. If the power dynamics in your relationship are so skewed that one of you is totally intimidated by the other spouse and is unable to speak for him/herself, then mediation may not be the best option. If one or both spouses is impaired by drugs, alcohol or mental illness, s/he may not be able to process the information, participate fully in discussion, or make informed decisions. I can work with spouses to set ground rules to help level the playing field, such as: refraining from name-calling; honest and complete financial disclosure; refraining from threatening or bullying; allowing attorneys or trusted advisors to come to the mediation for emotional support, etc. But, if you do not feel safe coming to mediation with your spouse, you should not mediate. 


My situation is complex, with a business, inherited wealth, lots of debt, or real estate. Can we still mediate? 

Yes. As a former attorney with nearly 40 years of experience in litigated and mediated divorces, I can help you identify the issues, sort through the financial matters, and work on solutions that address all of the complexities. You will also be advised by your own attorney, financial advisor, and perhaps others so that you can make fully informed decisions for yourself and your family. If needed, we can bring in appraisers, accountants, financial analysts, financial planners, and anyone else with needed expertise to be sure that all necessary information is available and that both of you completely understand the facts of your situation.


General Mediation Questions

How is mediation different from arbitration? 

In mediation, it is the parties who define the issues, determine the pace of the process, and make the decisions on the outcomes. Arbitration is much like a court proceeding: the arbitrator frames the issues, determines the schedule, conducts a hearing with witnesses and evidence, and makes the final decision. In mediation, the parties commit to full disclosure of all pertinent information. In arbitration, only the information that the parties wish to share gets disclosed.


How is mediation different from collaborative law?

In mediation, the parties’ attorneys may continue to represent them in court if they fail to reach an agreement; in collaborative law, the parties’ attorneys and anyone else who was involved in the collaborative process is disqualified from being involved in any way in a subsequent court proceeding between the parties. In collaborative law, it is more common for other professionals besides attorneys to be directly involved in the process: neutral child specialists, financial professionals, coaches are frequently part of the collaborative team. In mediation, clients most often obtain their legal advice outside of the mediation room and other professionals are less frequently involved.


Is mediation confidential?

Yes. Under California law, everything that is said or disclosed in mediation is confidential, unless the information can be obtained independently (such as bank statements, deeds, other official records, etc.). If you end up in court or arbitration against one another, the statements you made in mediation cannot be used against you, nor can the mediator be subpoenaed to testify.


Are agreements reached in mediation binding?

Typically, parties want their agreement to be binding and to settle the conflict for good. In such a case, there is a written agreement, which is signed by both parties, and it becomes a contract. In divorces, prenuptial agreements, and other matters where the parties are represented by attorneys, the mediator prepares a Memorandum of Understanding (MOU), which summarizes the agreements reached in mediation, and the attorneys prepare the formal legal documents for the parties’ signatures. Experience has shown that mediated agreements are complied with more often and more completely than court-imposed resolutions, because both parties were actively involved in crafting the solutions and the agreement was voluntarily reached.


What if special expertise is needed? Can we bring accountants, appraisers, financial analysts, etc. into the process?

Absolutely. The goal of the mediation process is for each party to make a fully informed decision. If that means that people with specialized knowledge can be helpful in ensuring that each party has full information and fully understands the information, the mediator will encourage the use of experts. The expert can come to a mediation session to share the information with both parties and answer questions, s/he can prepare a report that summarizes his/her findings, or the parties can meet with him/her outside of the mediation session – whatever works best for the parties and the expert.


What is interest-based negotiation, and how is it important in mediation?

Interest-based negotiation focuses on the needs and interests of the parties, to enable each party to get more of what is important to him/her. Rather than stake out hardened positions (“I must have X and Y in order to reach an agreement.”), using interest based negotiation, we focus on why X or Y might be important. Often, that allows for other options to satisfy that need, while still giving the other person what’s important to him/her. For example, if two people are fighting over an orange, the standard “fair” approach would be to give each person ½ of the orange. But if the mediator asks both people why the orange is important to him/her and we learn that one is thirsty and wants to make juice and the other is making muffins and needs the rind, we can craft a solution that gives each person more of what is important to him/her: one gets entire orange’s worth of rind and the other gets an entire orange’s worth of juice.


Is Mediation always successful?

No. Sometimes people have unrealistic expectations of what they might receive in court, and are unwilling to compromise. Sometimes a desire to punish or win overrides a desire to settle the matter.


Will I have time to think things over before committing to an agreement?

Yes. One of the advantages of mediation is that while the goal is settlement, there is no pressure. You can try out temporary arrangements to see how they work before finalizing an agreement. You can take time between sessions to consult family, friends, and trusted advisors before committing to anything. You can tweak temporary arrangements until they work for both of you.


Robin is a skilled attorney and mediator who is active in her collaborative law community and always furthering her experience and training. She uses care and compassion in her work and I would recommend her to clients.
Kathleen Gleeson, Attorney
Kerker & Gleeson, PC


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