*Introduction. At the outset, I would like you to know that my law practice is one hundred percent devoted to California Family Law mediation and litigation. I am accustomed to singing the praises of mediation as an attorney who has been a paid panel mediator for the courts in both Los Angeles and Riverside Counties, a private mediator/panelist on the Stonewall ADR domestic partnership issues mediation panel, and a mediator for the LASC Probate panel on Guardianship matter. I have represented Family Law clients at numerous mediations. However, it is important for divorcing parties to understand that there are four situations, discussed below, in which I do not recommend mediation because it would not be a cost-effective use of the client’s resources.
1. Domestic Violence. Domestic Violence includes any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another. There are many ramifications for the spouse who is guilty of domestic violence, including being subject to a restraining order, criminal penalties, excluding from the family residence, and denied or ordered to pay more spousal support. (See my article “Implications of a Domestic Violence Restraining Order in California”). Because a Domestic Violence restraining order prohibits the abusive spouse from contact with the victim spouse, mediation is not an option under this circumstance. Mediation necessitates considerable contact and communication between the parties. Indeed, even if the allegations of Domestic Violence are believed to be false, if the allegations result in a restraining order against one or both spouses, they will not be able to meet together in the context of working out an amicable settlement.
2. Substance Abuse. Substance Abuse is a common reason why a marriage breaks down due to the destructive impact it has on domestic life. Substance abuse may include drug or alcohol addiction, including abuse of prescription medication. The active addiction of a spouse to a substance precludes the possibility of that spouse being capable of participating in the often all-day conferences which are part and parcel of the mediation process. Mediation cannot be successful if one spouse fails to be sober and capable of making a decision as to settlement. However, if the addicted spouse is successfully participating in a program of recovery, mediation should not be ruled out.
3. Allegations of Child Abuse. Many divorce cases involves issues of custody of minor children, including the amount of time each parent will have with the children and putting in a place a comprehensive parenting plan. If one parent believes the other parent has physically or sexually abused the minor child, these allegations will be taken very seriously both in the process of determining child custody and by the appropriate authorities. Because the goal of mediation is to agree upon a judgment resolving all issues in the case, including the parenting plan, it is unrealistic to expect the parties to arrive at a voluntary settlement when one parent is being accused of child abuse. In that case, the parties will almost always need the assistance of the courts in determining what is in the child’s best interest and what parenting plan will be ordered by the court.
4. Lack of Financial Disclosure. Financial issues dominate both mediation and litigation in a divorce. Each spouse will have an obligation of full, accurate and complete disclosure of all information and documents concerning the financial status of the parties. Mediation as a process depends on having access to all material facts and information regarding finances so that they may be analyzed and addressed. Often, forensic accountants and appraisers are utilized to make reports concerning spousal support, division of assets, valuations, and reimbursements. Without disclosure of financial information, mediation cannot proceed because there is no basis upon which the mediator, and attorneys representing the parties, can determine issues. It only takes one party who refuses to disclose to present such a roadblock to mediation. Both spouses should be aware that there are penalties for failure to disclosure, but imposition of such penalties depends on utilizing litigation. (see my article “5 Tips to Financial Disclosure Laws in a California Divorce”).
*Conclusion – While it is common for divorcing parties to hear about the benefits of mediation, it is also important for the parties to recognize the limitations of this process and when it is not an effective use of resources. The above-described situations in which mediation is not an option illustrate that when the parties are extremely polarized in their positions or mindsets, it is unlikely that they succeed in a mediation whose goal is to voluntarily agree on a settlement. That is why it is important to seek representation by an attorney who is experienced in both mediation and litigation of Family Law cases.
The above is not intended as legal advice, so please consult with an attorney regarding your legal issues, including whether you are entitled to a contribution to your attorney’s fees.