Mediation FAQs

  1. What are my disclosure obligations?
  2. Why do I have to make all the financial disclosures in divorce mediation? Isn’t it supposed to be more informal than court?
  3. Isn’t it easier for my spouse to hide assets and information in mediation?
  4. When do actual negotiations begin?
  5. Who does the paperwork for the divorce?
  6. What about telephone mediation?
  7. I live out of state and scheduling is difficult. Do we both have to come to your office to have a mediation session?
  8. My spouse and I both have busy work schedules, and I travel frequently on business. How can we mediate our divorce without having to incur travel expenses or lose time from work?
  9. Should I complete the mediation before filing for divorce?
  10. What if I think my spouse isn’t mediating in good faith?
  11. Why should I pay a divorce mediator when the judge at the courthouse is free?
  12. What if we can agree on everything but one issue? Should we just take the whole case to the courthouse?
  13. Why do I need to know what is likely to happen at court? Isn’t that irrelevant if I’m in mediation?
  14. If we mediate our divorce, how do we determine who was wrong?
  15. What causes delays in divorce mediation?
  16. What if my spouse wants to move at a different pace than I do?
  17. What can I do to make the divorce mediation most effective?
  18. What if my case is too complicated for mediation?
  19. Will I still have to go to court?
  20. How does the divorce mediator get paid?
  21. What if my circumstances change after I reach an agreement in mediation?
  22. What does the research on mediation say?
  23. What is Lee’s success rate?

1. What is divorce mediation?
Mediation is a voluntary, flexible, non-adversarial , private and confidential process for resolving your divorce or other family law issues with the help of a neutral mediator who will assist you in reaching an agreement. It is cost-effective, and much quicker and more efficient than proceeding through the public courts. The divorce mediator is not a judge or arbitrator, and cannot force anyone to do anything, but will use his experience and training to help you reach an amicable agreement. Any agreement which is reached must be acceptable to both parties. You and your spouse retain complete control over your divorce or other family law matter and can be far more creative than the courts in designing an amicable and cost-effective solution that works for your family. The entire tone of mediation is one of working together to reach a solution rather than trying to vanquish or destroy the other party. There is usually great power in the negotiation and discussion by both parties together in a neutral setting.

2. What is divorce litigation?
In litigation, each side (with or without attorneys) prepares by conducting discovery in order to get the weapons with which to attack the other party and “win” the legal, economic and psychological war. The system itself often encourages and rewards such tactics. Depositions of friends, family, business associates and subpoenas of reams of documents are scrutinized, as the parties criticize the other’s role as parent and spouse. The process is long, slow and expensive, both financially and emotionally. It is definitely not cost effective, nor is it going to be amicable. Many people blame the attorneys for the cost and the wreckage, but it is usually the clients, the parties themselves, who direct their divorce attorneys in an attempt to obtain vindication or some other perceived advantage. All of this is done in a gamble to convince someone (the judge) in a very public and non-confidential arena, who knows very little about them (except that they are willing to go to war) to grant them a “victory” (however they define it). There are many risks to divorce litigation. By engaging in war, litigants grant a total stranger the power to make the ultimate decisions about their own and their children’s lives. Divorce litigation is often associated with military terms, “going to war,” “victory/defeat,” “scorched earth,” and the like. For many high conflict couples, this seems rational, since each party can only see their own side of the issue. They assume they will be vindicated and the other party will be punished, often for some perceived misconduct which is outside the court’s jurisdiction. The reality is that most parties leave the courtroom feeling unsatisfied. And the next issue which pops up will be fought just as hard, as each party tries to make up for what they perceived they “lost” in the last round. Like real war, divorce war is extremely expensive, not just in the attorney fees and out of pocket costs, but court costs, witness expenses, and psychological and emotional wounds, both to the litigants and their children.

3. How is divorce mediation different from litigation?
In litigation, each party presents his or her “case” to the judge, and the judge decides who “wins” and who “loses.” In contrast, divorce mediation is a voluntary, non-adversarial, informal and confidential process in which the parties, with the assistance of a neutral mediator, jointly make the decisions which will impact their and their children’s lives. The mediator cannot compel either party to do anything, and any agreement reached must be mutually agreeable.  It is faster and less expensive than litigation, helps people learn to cooperatively solve their problems in a cost-effective manner rather than attack each other, and results in much greater satisfaction with the ultimate result.

4. How is divorce mediation different from arbitration?
In arbitration, a neutral third party is hired to make the decision for you. Although it is usually more informal than litigation, it is still much more like traditional litigation than mediation. In divorce mediation, you and your spouse work out an amicable divorce agreement in a confidential setting with the assistance of a neutral mediator. You make the decision jointly. The mediator doesn’t make the decision for you.

5. What is the difference between divorce and family law?
Divorce is only one aspect of the larger topic of family law, though it is the most common. The end of a marriage does not necessarily mean that there are no remaining family law legal issues. There may be changes to custodial arrangements or support obligations long after the divorce is final. There are also aspects of family law which are unrelated to a divorce. They include parentage of children, drafting of premarital agreements, dissolution of domestic partnerships, and the rights and obligations of step families.

6. Who makes the decision in divorce mediation?
You and your spouse jointly make the decisions about your divorce in mediation. Lee isn’t the judge or arbitrator. For that reason, it isn’t a good use of his time or your money to try to “convince” him that your position is “right.” Your energy and time are better spent discussing creative, amicable and cost-effective solutions to your divorce and related legal issues.

7. Can I interview the divorce mediator before agreeing to mediation?
Since the divorce mediator is acting as a “neutral,” that is, not representing either of you, he generally won’t talk to either of you outside the presence of the other without the advance knowledge and consent of the other party, except for such “housekeeping” matters as scheduling an appointment. If you are considering divorce mediation, you and your spouse should jointly interview the proposed mediator, to be sure you both feel comfortable, not only with the mediator, but with the mediation process. That is the time to ask all of your questions about divorce mediation, your mediator’s qualifications, costs, and the pros and cons of mediation in your situation.

8. How do I choose a mediator? Are they all created equal? 
Done correctly, divorce mediation is a very creative process. Most divorce mediators have specific training in mediation techniques, and keep those skills current with annual professional education.  They also have extensive knowledge of divorce laws. That being said, as with any other profession, there is a wide variation in education, skill, experience, style and creativity among divorce mediators. In selecting your divorce mediator, you should consider all of these factors, as well as the following:

  1. How much of the mediator’s practice is actually devoted to divorce mediation? Ideally, you want a mediator who devotes a substantial amount of time to mediation, rather than someone who only does it as an occasional sideline to litigation. Lee limits his practice entirely to working as a “neutral” and does not accept litigation clients. Similarly, a mediator who mediates real estate or business disputes in unlikely to be familiar with the specifics of divorce law which will enable him or her to help you reach appropriate, cost-effective and amicable agreements concerning your divorce.
  2. How much experience does the divorce mediator have in cases just like yours? You wouldn’t choose a real estate mediator to mediate your divorce, or vice versa. Similarly, if you have complex property or custody issues, you will want a mediator with a thorough background in those areas. If your divorce requires that a family business be valued or divided, you want your mediator to be intimately familiar with and anticipate the complications this might entail. You don’t want the division of your family business to be the first one your divorce mediator has seen. It would not be cost-effective or efficient.
  3. How does your divorce mediator describe the process? Your divorce mediator will describe the process of mediation in the initial consultation. This is valuable information not only to educate you on what to expect, but to educate you on your mediator’s preferred way of proceeding. Then, you and your spouse can jointly decide if you are comfortable proceeding with the assistance of this individual.

9. Can I ask for references?
No, you can’t. Since divorce mediation is completely confidential and private in California, the mediator cannot reveal the names of others whom he has assisted as a mediator. That being said, most of Lee’s referrals come from satisfied clients whose own divorces he has mediated.

10. Do I still need a consulting attorney?
Your divorce mediator, although an attorney, does not represent either of you. He doesn’t give you personal legal advice. Some people elect to proceed without a consulting attorney. However, it is always a good idea to consult with an attorney before entering into a legally binding document to ensure that you fully understand the legal consequences and their impact on you.

11. How much does divorce mediation cost?
You pay your divorce mediator by the hour, so the cost is solely determined by how many issues you have, how many sessions you need to resolve them, and how much drafting the divorce mediator needs to do.  The complexity of the issues and the ability of each party to negotiate will also impact the cost, and each party’s cost for their consulting attorney depends on how much time they spend with their consulting attorney. Divorce mediation is much more cost-effective than litigation. Generally speaking, litigation will cost from three to twenty times as much as divorce mediation. The monetary cost is measured in dollars, which directly reduces the size of the estate you are dividing. The emotional cost can only be measured by each individual. Compared to mediation, the adversarial battle in divorce litigation exacts a huge emotional toll on the parties and their children.

12. How long does divorce mediation take?
Typically, there are three to five meetings lasting one to two hours and spread over six to eight weeks. The timing of these meetings is usually dictated by how long it will take to gather the information and records you need before the next meeting and how long it takes you to reach an agreement on an issue. The goal is to go as far as possible in each mediation session. You frequently reach a point where no further progress can be made without more documents or information, such as the value of the house, or details of the pension plan. Sometimes you just need a break so you can calmly consider the agreements that are being suggested before you can move on to the next topic. Sometimes you will want to take a break to run an idea past your consulting attorney or tax advisor before proceeding. After identifying what you need before you can move forward, each party can be given a homework assignment” [link to #46] to gather information before the next meeting.  If you have already pulled together all of your information and exchanged it with your spouse, there will be little delay between  meetings and your divorce mediation will move more efficiently. Occasionally, you may need to wait for a real estate appraisal, business valuation or tax calculation before taking the next step.

13. What does the mediator bring to the divorce process?
Lee brings extensive mediation experience, thirty-eight years of family law litigation experience (including as a judge pro tem), and a thorough knowledge not only of California divorce and family law, but of many of the judges at the courthouse and how they may rule on specific issues. The most important asset is his mediation training, his experience helping divorcing couples reach amicable agreements, and his ability to devise creative solutions to divorce problems which work for both parties. In the last ten years, Lee has conducted hundreds of divorce and other family law mediations.

14. What do the clients bring to the divorce process?
You bring your unique family to the divorce process. No two families are alike, and no one knows your children, your assets, income, and property better than you do. With this, you are able to craft a unique solution tailored to your issues and needs, and you are not required to accept a “cookie cutter” solution designed to fit someone else’s family or “most” families.

15. What issues can I bring to divorce mediation?
Literally all aspects of divorce and family law are potential subjects for mediation. These include property characterization, valuation and division, stock options, pension rights, business valuation, separate property claims and tracing, child and spousal support (“alimony”), child custody and parenting rights, and any other issue presented by a divorce or post-divorce proceeding. Other subjects outside the litigation context are similarly good candidates for mediation. These include premarital agreements, post-marital agreements, payment of college expenses, and any other issues requiring agreement by both parties. You and your spouse can agree to bring any post-divorce disagreements back to mediation. Since support and custody often change and existing court orders may need to be modified as your financial situation or children’s needs change, this is a good use of mediation and a much more efficient and cost-effective way to resolve disputes than taking them to the court.

16. Why can’t we do the whole thing in one session?
In a divorce, you will be covering a lot of ground in each session. Sometimes you need time to digest and think about the issue you’re discussing before making a commitment. Also, sometimes you want to devote one session to dealing with money issues and another to the children. After years of doing divorce mediations, Lee has concluded that it is important for people to step back periodically and think about the solutions being discussed to be sure that they understand and agree with the course being taken. A lot of ground can be covered in two hours, and it is easy to reach information or emotional overload. Remember, the goal of mediation is to reach a joint agreement which you both understand and agree to and which works as well as possible for both of you without being coerced.  That being said, most post-divorce changes or modifications are done in one session.

17. What if I change my mind about a tentative agreement part way through?
The whole point of mediation is to work out your solution to your divorce issues in a confidential, cost-effective and amicable manner. You will be making partial “temporary” or “conditional” agreements from time to time throughout the divorce mediation. It is OK to change your mind or revisit these agreements as the mediation progresses. However, as many of the issues are interrelated, none of these temporary or conditional agreements will be final and binding until the entire agreement is put together. Only in that way can you and the divorce mediator be sure that everyone understands the entire agreement and is entering into it voluntarily and with full knowledge of its legal and practical effect.

18. What are my responsibilities in divorce mediation?
As the client, you have several responsibilities. You must sincerely desire to reach a joint and amicable solution, and participate in good faith. You must make full disclosure of all relevant facts which are known to you so that your spouse can make an informed decision about any agreement. You are responsible for your “homework assignments”. If you come to a follow-up meeting without have gathered the information you will need to discuss issues and possible agreements meaningfully, you will waste your and your mediator’s time, as well as your money.

19. Why wouldn’t I just want to let the judge decide?
Over the course of the divorce mediation, you will be spending many hours with your mediator, discussing all aspects of your divorce case. No one will limit the time you need to explore all possible solutions before agreeing on the one that works best. In mediation, you can think creatively and make an agreement which the judge often couldn’t order at court. Most litigants don’t realize that the judge’s power in divorce is really quite limited, and there are many solutions which may make perfect sense for your divorce case, but which exceed the judge’s jurisdiction to order. Also, while Lee will spend a number of hours with you and your spouse getting to know all aspects of your case, the judge doesn’t have that kind of time. You are lucky to get an hour or two with the judge. If you aren’t successful at mediating your divorce with the assistance of a neutral mediator, a stranger in a black robe, who knows much less than the mediator does about you, your family, and your estate, will be imposing a decision which may be much less acceptable to you than the ones you discuss in mediation.

20. Can you give me an example?
Yes. For many families, the major asset is the house. Since California law requires that community property be divided equally, the judge is generally left with only two options: award the house to one party at a specific value to be determined, and award other assets of equal value to the other spouse, or order the house sold. If you don’t have assets of equal value to award the other spouse, the house will almost always be sold. This can be a real hardship, especially in a down housing market. You have many more options in divorce mediation: you can agree to remain co-owners for a specified period of time after the divorce, deferring the sale to a specific time in the future. You can award the house to one party subject to a promissory note to pay the equalizing payment over time (a solution which is very difficult to get at court). You can get even more creative, and Lee will work with you to explore which solutions might work best for you.

21. What are the benefits of working out our own solution?
There are many potential solutions to any divorce issue. Unfortunately, the courts are usually limited to one or two potential solutions they can order without exceeding their limited jurisdiction. You and your spouse may be able to devise a creative solution which works for you and which wouldn’t be available at court. People are often told to “think outside the box.” In divorce mediation, there is no “box.” The only limitations on what you can do are imposed by certain tax rules and other statutes, principally dealing with children.

22. When should I not mediate?
There is rarely a circumstance when you wouldn’t be well advised to try mediation first. Even if there is a history of domestic violence, or if one side is overbearing, you can usually accomplish something in divorce mediation. Even if you can’t resolve the whole case, a partial mediation will reduce the number of issues you have to take to the court. That in turn reduces the amount of money you have to pay your attorneys, and means the judge’s time is most efficiently used by focusing on those areas of disagreements that you are truly unable to resolve between yourselves. You may not want to mediate if there are existing court orders restraining contact between the parties. However, even in these circumstances, there are methods whereby a divorce mediation can go forward without violating court orders.  Sometimes one of the parties feels the need for more protection or structure, or control of the process. And sometimes one party wants to make a “point,” or pursue a “legal” right with the goal of punishing the other party. These cases would not be good candidates for successful mediation. Another situation where divorce mediation is generally not recommended is where one party is unable to give informed consent to an agreement due to impairment, whether caused by mental health issues or substance abuse.

23. Can I talk to the mediator privately?
Generally not. One of the reasons Lee will want to talk to both sides at the same time is to be sure that you both hear the same words. Since understanding and informed consent are critical to successful divorce mediation, and misunderstandings do occur, it is important to be sure that both of you hear exactly the same words from him at the same time. There is usually great power in negotiation and discussion by both parties together in a confidential, safe and neutral setting. This is also true in talking to your consulting attorneys. If they want to talk to the mediator, they will be asked to set up a conference call at a time when both of them can be on the phone at the same time. The one exception to the rule against talking to the mediator privately is caucus mediation.

24. What is caucus mediation?
If there are restraining orders, a history of domestic violence, or if you and your spouse are unable to be in the same room together, you can each meet privately with the mediator in caucus mediation, so long as you both give informed consent. In that way, you are each able to freely share your concerns and positions on the issues with the divorce mediator, and Lee will subsequently share these with the other party at a different time. This usually involves each party in a separate room or meeting at different times. Caucus mediation is not an excuse for withholding substantive financial and other data which you are required by California law to disclose, nor is it an opportunity to get the divorce mediator on “your side.”  Caucus mediation is an opportunity to be creative and explore novel solutions when you and your spouse cannot reasonably negotiate in person with each other, even with the assistance of a neutral third party, Since caucus mediation involves individual meetings with each side, it takes more of the divorce mediator’s time, which makes it more expensive than mediation where both parties meet together with the mediator. However, it is still confidential and more cost-effective than divorce litigation

25. Can I bring my attorney with me?
If you wish, you can bring your consulting attorney with you to mediation, or you can consult with your attorney between sessions and take any potential agreements to the attorney to review before making a commitment. Some people feel more comfortable with their attorney in the room. If you want to bring your attorney, you should let the other side and the mediator know in advance. The other side may also bring their attorney if they wish. If you just show up with your attorney and the other side wasn’t given an opportunity to bring theirs as well, they are likely to feel “blindsided” and at a disadvantage, which will almost always require rescheduling the session to a time when both attorneys are able to be present. Any time a party to mediation feels blindsided, they are likely to suspect lack of good faith in the mediation process. Finally, even if you elect to bring attorneys, Lee will not allow the mediation session to turn into an adversarial proceeding or a deposition. It is still mediation, even if divorce attorneys are present.

26. Is divorce mediation confidential?
Yes. In California all divorce mediation is private and confidential. That means that if you are not able to reach an agreement, the other side can’t later use what was said in mediation against you in court. This policy is designed to encourage people to negotiate and resolve their differences amicably by agreement, which they are more likely to do if they are not afraid of speaking freely for fear that what they say will be used against them later in court. However, certain required documents which are prepared in divorce mediation do not remain confidential and are required to be filed with the court and become part of the public record.

27. Is divorce mediation private?
Yes. Unlike divorce litigation, which takes place in a crowded public courtroom where everyone waiting for their own case to be heard and is listening to the intimate details of your case, divorce mediation takes place in a private office behind closed doors. No one other than the divorce mediator and (occasionally) your consulting attorneys are allowed to be present. Your divorce negotiations don’t become part of the public record, and others don’t get to listen to your case.

28. What is the difference between private and confidential?
Confidential refers to who can know what was said in mediation. It means that nothing you or your spouse says in the course of divorce mediation can be used against you later in court. Even if your mediation is not successful and you go to court to resolve one or more issues, your divorce mediator isn’t allowed to be subpoenaed to testify about what was said in mediation. Neither you nor your spouse can be asked questions about what was said in divorce mediation. This is done to encourage people to explore all possible solutions without the fear that what they say will later be used against them. Private refers to location and who is allowed to be present. It means that the divorce mediation is conducted in a private place rather than a public court.

29. Will my spouse be able to coerce or pressure me in mediation?
No. Lee has extensive training and skill in ‘leveling the playing field,” and keeping it level. This is done in a number of ways. He will ensure that each party has equal access to all relevant information before they sign the agreement. He will not allow threats, coercion, or artificial time pressures to impact the integrity of the divorce agreement and, if appropriate, he will suspend the meeting or the whole divorce mediation rather than allow abuse of the process.

30. If I don’t have a lawyer, will my spouse will be able to push me around?
No. One of the first things a divorce mediator is trained to do is to ensure that the parties are operating on equal footing and that neither party can threaten or attempt to intimidate the other. It is very rarely necessary to have a “protector” in divorce mediation.

31. If I get my spouse to agree to mediation, is that a way for me to stay in control?
No. By definition, a mediated divorce  is a joint agreement, entered into after full disclosure, and without coercion or duress. If both of you don’t agree, you go to the courthouse and take your chances there. In essence, you both have veto power until a complete agreement is reached.

32. What are my disclosure obligations?
Whether you are in divorce mediation or litigation, the State of California has imposed stringent disclosure obligations on everyone going through a divorce. These disclosures are required to make sure that both sides have access to the same information, to allow each of them to give fully informed consent, and ensure that they have equal opportunity to protect their rights. These same disclosure requirements apply in mediation, and Lee will assist you in filling out the necessary paperwork. When in doubt, it is always a good idea to err on the side of disclosing more rather than less. After all, you go to a lot of work to obtain an enforceable divorce settlement, and that is all wasted if it is later set aside because one of you failed to make all of the necessary disclosures.

33. Why do I have to make all the financial disclosures in divorce mediation? Isn’t it supposed to be more informal than court?
It is more informal than going to court. However, the integrity of any mediated divorce agreement depends on each party having full disclosure of all relevant information before consenting to the agreement. Also, the laws of the State of California not only mandate full disclosure, including ongoing duties of disclosure throughout the course of the proceeding, they impose severe penalties for divorce litigants who fail to make full disclosure, including setting aside an agreement which was reached without full disclosure. That is why it is always a good idea to err on the side of caution and disclose everything, even if you think it isn’t relevant.

34. Isn’t it easier for my spouse to hide assets and information in mediation?
No. You each have all of the same disclosure requirements in divorce mediation as in litigation. One of the first things that will happen in divorce mediation is the exchange of all relevant information, and the creation of a process to obtain and exchange any documents or additional information which you haven’t obtained yet. There is generally no formal discovery, as information is exchanged informally. If that exchange of information doesn’t happen, you will be able to return to a more formal venue (the courthouse) where you can enforce your rights to obtain all relevant data before entering into a binding agreement you may even return to divorce mediation after completing the formal discovery process.

35. When do actual negotiations begin?
Actual divorce negotiations don’t begin until the exchange of information and documents is sufficient to ensure that both of you are negotiating from a position of relative equality in terms of knowledge of all potentially relevant facts. Depending on your situation, this can occur at the first meeting or not until the second.

36. Who does the paperwork for the divorce?
With one exception, that decision is up to you. You and your spouse can draft it, or one of your consulting attorneys can draft it. Most couples opt for Lee doing the drafting. The one exception is the Marital Settlement Agreement (“MSA”), which is the contract between the two of you. If you and your spouse reach an agreement in your divorce, a formal written document (the MSA) is prepared. Lee insists on drafting this document himself. His reason is a good one. He knows what the agreement is, including its intended legal effect, because he was present at all of the negotiations which led up to it. It is impossible (and expensive) to try to explain all of the give and take that happened during the course of a divorce mediation to one of the consulting attorneys and expect them to get all of the details right in preparing the agreement .

37. What about telephone mediation?
If you or your spouse lives at a distance, you can have divorce mediation by conference call. Lee has done successful divorce mediations by telephone, even on extremely complex issues, where the parties live in different parts of the country, or even where one of them lives in a foreign country. Even if you live nearby, if the issue is such that the session will be brief (fifteen or twenty minutes),  you can ask for a conference call instead of a face to face meeting so that you can save the time of going to Lee’s office. This can also be an alternative to caucus mediation if you really can’t be in the same room with your spouse.

38. I live out of state and scheduling is difficult. Do we both have to come to your office to have a mediation session?
Technology has made it easy to conduct divorce mediations at a long distance, using Skype, conference calls and web-based conferencing services. That makes it easy to schedule sessions despite busy schedules, and geographical distance and saves the cost of traveling to court or to meet in a divorce mediator’s office. If a session is going to be less than 30 minutes, it is often best conducted by conference call. This alone can reduce the cost of divorce mediation.

39. My spouse and I both have busy work schedules, and I travel frequently on business. How can we mediate our divorce without having to incur travel expenses or lose time from work?
Lee offers divorce mediation appointments as early as 7:00 a.m. to accommodate those who can’t afford to take time off from work. Additionally, technology has made it easy to conduct divorce mediations at a long distance. That makes it easy to schedule sessions despite busy schedules. The fact that one (or both) parties may be traveling doesn’t mean that you have to wait until your travel schedules coincide to have a confidential divorce mediation session with Lee.  Draft documents, proposed agreements and other information can be circulated by email, fax or FedEx to minimize the amount of time you have to physically meet, and to make individual mediation sessions as productive and cost-effective as possible.

40. Should I complete the mediation before filing for divorce?
Most people know that it takes six months to get a divorce in California. That time period doesn’t start running until one party (the Petitioner) serves the other party (the Respondent) with a filed Petition for divorce. Most couples want to start the time running as soon as possible. Since the mediation process may take a couple of months, if you wait to file the Petition until after the mediation is concluded, you may be unnecessarily delaying your divorce. There are often tax reasons to get the Petition filed and served. If you are in the first half of the year, and you want to preserve the possibility of filing as a single person for federal and state income tax returns for that year, you will only be able to preserve that option if the Respondent is served with the Petition prior to June 30th  of the year in which you want to file single. You generally won’t know early in the year whether you will want to file jointly or as a single person, and one or the other method may have significant tax savings, depending on what agreements you and your spouse reach. However, if you don’t preserve the option by filing and serving at a time which will allow the six months to run before December 31st, you won’t have the ability to file as a single person, no matter how advantageous that may have been to you.

41. What if I think my spouse isn’t mediating in good faith?
You always have the option of going to the public courts (or a private judge) if the divorce mediation fails. Mediation requires that both parties participate in good faith. If one of the parties is not, then the mediation is not going to be successful. Lee has, on occasion, advised couples that they are not good candidates for mediation and sent them back to litigation.

42. Why should I pay a divorce mediator when the judge at the courthouse is free?
Getting to the judge isn’t free or even cheap. And, although divorce mediation is much more cost-effective than litigation, it isn’t just a question of cost. You have many more opportunities to craft creative solutions to your divorce issues in mediation, since the remedies available to the judge are generally quite limited. You also have as much time with the mediator as you need. It is rare to have more than an hour or two with a judge at the public courthouse. Since you will be living with the consequences of your divorce for the rest of your life, isn’t it better to have a thoughtful solution tailored to your case than be stuck with a decision imposed by a stranger in a black robe who has limited time and, even with the best intent in the world, really doesn’t know a thing about you or your family? Wouldn’t you prefer to make your own life decisions rather than having them forced on you by a stranger? And finally, most couples who fall out of mediation and litigate at court spend a lot more money on the litigation than they would have spent in divorce mediation. This just reduces the marital estate which is ultimately divided between you. Given this choice, most couples prefer to hold on to as much of their estate as they can rather than pay it to lawyers and expert witnesses.

43. What if we can agree on everything but one issue? Should we just take the whole case to the courthouse?
Even if you can’t agree on everything, you are better off mediating what you can agree on, and only taking to court (and paying to litigate) the issues you truly can’t resolve in any other way. Court is always a last resort, not a first.

44. Why do I need to know what is likely to happen at court? Isn’t that irrelevant if I’m in mediation?
It is very important to know what the “default” is, that is, what is the likely result if you just take your issue to court. Only then can you know whether the mediated solution is more attractive. Also, because of his years of family law litigation, Lee can tell you what the judge (with limited jurisdiction and limited time) is likely to do on your issue. Depending on which judge you are assigned to, he may be able to tell you what your particular judge would be likely to do on a specific issue. If the result you are trying to get in divorce mediation is one you can’t get at court, why would you not keep trying to work it out creatively? Many important issues and their solutions (such as who pays for college) are outside the judge’s discretion but can be included in a mediated divorce settlement if you and your spouse agree.

45. If we mediate our divorce, how do we determine who was wrong?
Divorce mediation isn’t about assessing blame. Every marriage is complex and unique, and every divorce is unique as well. The point of divorce mediation is to find amicable solutions which resolve the issues of your divorce in a cost-effective way that leaves both parties with their dignity intact and minimizes the exposure of children to their parent’s conflict.

46. What causes delays in mediation?
Most delays are caused by people not doing their homework assignments or one party is having difficulty making a decision. If they have gone as far as they can without additional information, and they don’t get that information before the next session, valuable time is lost. Sometimes there is a good reason to delay, such as holidays and vacations, preservation of health insurance coverage, or tax considerations.

47. What if my spouse wants to move at a different pace than I do?
This is a common situation. It is rare for both parties to want the same thing at the same time. Since divorce mediation requires active participation of both parties, you have to agree on a compromise and proceed at a compromised pace with neither party dictating to the other. Otherwise, it simply doesn’t work.

48. What can I do to make the divorce mediation most effective?
Provide all information which is requested of you promptly and completely. Make sure you do your homework assignments between sessions. Much valuable time is lost waiting to get information or documents from third parties or institutions (banks, credit card companies, etc.) or contacting third parties such as consulting attorneys or financial advisors. The more of this you can gather at the outset, the more efficiently you will use the divorce mediator’s time and the more quickly you can arrive at a reasonable solution.

49. What if my case is too complicated for mediation?
No case is too complicated for mediation. In fact, the complicated divorce cases are the ones which are least likely to get sufficient time and attention at the public courthouse. These are the cases that need the thoroughness and creativity of mediation. Lee has thirty-eight years of experience in all areas of divorce and family law as a litigator, mediator and private judge, and can help you in obtaining assistance from CPAs, appraisers, financial planners, tax advisors, custody evaluators, co-parenting counselors and other professionals whose input and advice may be necessary prerequisites to a negotiated settlement in a complex divorce case.

50. Will I still have to go to court?
The goal of mediation is to avoid the courthouse. Once a complete divorce agreement is reached, it will be submitted for approval and signature by the court, but you will not have to personally appear.

51. How does the divorce mediator get paid?
Typically the mediator charges by the hour, and each side pays half. Mediation is “pay as you go” and Lee does not require a retainer for divorce mediation cases. You will each be expected to pay for your half of the cost at the conclusion of each session, either by check or credit card. Sometimes you will agree that Lee will do additional work between sessions, such as drafting paperwork or filing papers with the court. If you do, that cost will be settled at the next mediation session. The mediator will also collect from you the costs advanced, such as court filing fees.

52. What if my circumstances change after I reach an agreement in mediation?
Family law is a very fluid area. Children grow and their needs change. Jobs and finances change, requiring a review of support agreements. Most mediated divorce agreements recognize that this is possible and provide that if such issues arise in the future, the parties agree to return to mediation to try to resolve them before filing a motion with the court. This means that you don’t automatically have to go to court if your circumstances change. You simply apply the same mediation process to the new issues or changes in circumstances.

53. What does the research on mediation say?
There have been many studies which clearly show that mediated divorces have long term positive effects on the parties and their children, especially the children and their ongoing relationship with their parents even into adulthood. The use of a non-adversarial process helps the parties learn to work together and communicate with each other, not only to resolve their divorce issues, but future issues which may come up…and if there are children, future issues will come up. Studies which compare mediated divorces with adversarial ones consistently demonstrate that the mediating parties took less time, spent less money, were more satisfied with the results, and were more likely to comply with the agreements reached. Since enforcement is always a potential problem, this is a particularly significant benefit of divorce mediation.

54. What is Lee’s success rate?
Lee has done hundreds of divorce mediations since 1992. About ninety-five percent of the couples who come to Lee for divorce mediation walk out with a complete amicable resolution of their divorce issues.