Thursday, March 5, 2020

What Makes Mediation Different From Litigation?

What is Mediation and How it Can Help You Reach an Out of Court Settlement

        Statistics consistently show that the majority of cases conclude with settlement so why do people think they have to go the litigation route when divorcing?  Surprisingly, because most people do not realize that there are other options.  In fact, almost all of the people who call my office say they hope to reach a settlement and do not want to go to court.  But their question is “how can they accomplish this”? The answer is mediation and here’s why:


        In California, in order to get a divorce, a case must be filed in the Superior Court.  To finish a divorce, the issues in the divorce are either agreed upon by the spouses and submitted to the court in a written agreement for the judge to sign or there is a trial where a judge makes all of the decisions.   Neither party gets to make decisions on their own.  Most people do not want to go to trial and there are good reasons for this sentiment!  It is a long and complicated process, it is expensive to hire an attorney, and it very often yields unexpected and disappointing results.  The adversarial nature of the litigation process almost always increases hostility and negative emotions between the parties, even if they didn’t have animosity prior to litigation.


        Wanting to reach an agreement and actually being able to take the steps necessary to achieve an agreement can feel insurmountable.  It can be very difficult for spouses who are getting divorced to work together and have productive conversations.  Communication between people getting a divorce is commonly strained and often impossible.  Understandably, it can be very hard for spouses to talk about things that are uncomfortable, difficult, or challenging. Mediation is a method for reaching agreements that really helps people in this situation. In mediation, the parties’ discussions take place with a mediator. The mediator is not a decision-maker nor a legal advisor. The mediator is a facilitator, somebody who guides the conversation while helping the participants isolate what the issues are and determine their own goals and objectives. The mediator assists in the negotiations so participants can reach their own agreements, make their own decisions, and decide the future of them individually as well as their children. Mediation is a process that emphasizes the spouses’ own responsibilities for making decisions that affect their own lives. A mediator is also a guide through the complicated legal process, including all the forms required, from the initial court filings to the finalizing of an agreement which will ultimately be submitted to the court.


Working with a mediator enables the conversation to be more productive than when people attempt settlement discussions on their own. Just the presence of the mediator in the room enables the parties to approach their issues and the discussion differently. Sometimes the facilitation by the mediator results in the parties having a better understanding of what the other is saying. Sometimes it is just having a more structured framework in which to have discussions. Sometimes it is just about having the mediator as a guide to help them understand how the process works and help them take their agreements in principle and turn them into a formal agreement that can be submitted to the court.
Mediation does not make the issues in a divorce different but it can make the process less adversarial, less combative, and more streamlined. Mediation sessions are scheduled based on your schedules, not determined by hearings set by a court. Parties are able to focus on objectives and goals, not positions and arguments. Mediation, in general, takes significantly less time than litigation and therefore costs significantly less.

        Laurie Amaya provides a free consultation for parties who are interested in mediation.  For additional information go to Contact Laurie at or call her at 626-441-2473 to schedule an appointment.