When Should You Opt for Mediation Over Divorce Litigation?

Posted by: Gerald A. Maggio, Esq.

Orange county divorce mediation attorneys; The Maggio Law FirmIt is never easy to go through a divorce. This it true even when you are splitting from your spouse in the most amicable manner. Moreover, it can be emotionally taxing while coping with the logistics. The stress is further compounded by expensive and lengthy court proceedings. A desire for getting out of these stressful formalities that are associated with a traditional divorce process is resulting in an increasing number of couples going for an alternative form of dispute resolution: divorce mediation.

When should you consider mediation as your choice?

Divorce mediation is regarded as appropriate in those situations when both the parties are ready for negotiation and do not have qualms about compromising with each other. While it is true that all the differences and disagreements will be there to resolve while the mediation process is going on, there are many couples who are really okay to sort out such differences by interacting with each other. These couples will derive the maximum out of a mediation process.

Now, there will always be cases where the only option is to go for a litigation. It is a logical process to go through a trial when one of the parties is not ready to budge from their unreasonable demands, hostile to the other party or is not ready to negotiate. Such issues are common in scenarios like abandonment, abuse or adultery. Mediation is not likely to succeed in these cases and it is necessary for the court to intervene.

How does divorce mediation function?

The process of mediation is a way to resolve a dispute where there is no intervention from the courts. It is a scenario when a couple is okay to communicate directly and discuss all the crucial issues that surround their impending marriage dissolution. This hammering takes place during a mediator’s presence. The issues may range from spousal support, agreeing on matters regarding their children, resolution of visitation and custody issues to retirement and division of the properties.

When an impartial mediator or a third party is present, the couples are not negotiating details on their own. A mediator’s role is to facilitate communication and chair over such discussions between the two parties. He or she attempts to offer neutral and unbiased guidance to both the spouses and eventually guide them to draft a divorce agreement acceptable to both of them. The expenses related to the mediation procedure is ideally split between both the spouses.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

The Difference Between Divorce Mediation and Private Judging

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyers; The Maggio Law FirmAlthough most of the individuals facing divorce litigation have probably heard of terms such as mediation and private judging, they do not really know the legal implication of either of them. Both divorce mediation and private judging can be cited as a process of resolution which can be used as an economical and less time consuming alternative to a typical divorce litigation that goes on for years in a court of law. However, many times mediation and private judging can also be carried out in conjunction with the regular litigation which implies that if the negotiation does not help achieve the desired result, the parties would then proceed to a court trial. Although both private judging and mediation procedures are carried out in the presence of a neutral third party, there are certain significant differences that distinguish one form the other.

What is divorce mediation? 

Divorce mediation can be described as an informal out of court process which involves an impartial third party known as the mediator, who assists the divorcing parties in resolving their conflicts and disagreements over their marriage. It is the duty of a mediator to guide and assist both the parties in reaching a mutually agreed upon settlement by ensuring the preservation of the underlying concerns and interests of both. A mediator does not however have the right of imposing a certain resolution upon the concerned parties, since he or she cannot grant legally binding verdicts. The final settlement mutually agreed upon by both parties can be merely cited as a contract signed by them, which does not have a legal force. In a nutshell, mediation can be an effective approach to resolving marital conflicts in situations where there is some room for a peaceful negotiation.

What is private judging? 

Private judging of divorce cases, on the other hand, is a negotiation process wherein both the divorcing parties mutually agree upon appointing a neutral third party as a judge to help find a resolution for their marital conflicts outside of the public courtroom, as a private affair. It can be cited as a simplified version of the actual courtroom litigation with lesser complicated procedures and operational guidelines. The private judging starts by both the parties stating their respective concerns and issues in front of the private judge and presenting before him or her the relevant documents and evidence.  After hearing both sides of the story, the private judge has the right to grant an ‘award’ or a final verdict which is held enforceable by the court of law, if either party fails to comply with it. In other words, the decision of the private judge is deemed as binding upon both the parties if the parties agreed to that in the beginning.

Considering the bigger picture, both mediation and private judge are enacted in order to reach a mutually agreed upon out of court settlement which not only saves the time and money of both the parties involved, but also makes the process less emotionally draining for them.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Steps Involved In Child Custody Mediation

Posted by: Gerald A. Maggio, Esq.

Orange County divorce lawyer; The Maggio Law FirmWhen you get divorced and need to sort out custody for your children, child custody mediation is usually the least stressful way to handle custody agreements. Unless your ex-spouse is an unfit parent for your children, try as much as you can to settle custody through mediation rather than dragging your family, and your children, through the heart wrenching agony of a bitter custody trial.

If you’re unsure of what mediation might look like, day-to-day, read on to find out.

When you decide on mediation, you, your attorney, your ex-spouse, and their attorney decide to come to a custody agreement in the presence of a divorce mediator instead of a judge.

When preparing for mediation proceedings, it is highly recommended that you hire an attorney, write out detailed schedules for your child, draft a custody agreement and visitation proposal, and make sure that you have all the documents you need concerning your child. Your attorney will be able to advice you regarding those documents.

Mediation processes usually follow a set of steps that are fairly standard—you meet with the mediator, figure out the issues that require mediation, discuss a custody agreement draft with your ex-spouse while making required changes throughout the process, and then sign the agreement.

When in mediation, you should discuss the following issues:

  • Figure out regular custody and visitation—are you going to share custody or not? Will the child remain with one parent most of the time? What does visitation look like?
  • Once you arrive at a custody situation, start defining the parameters and the boundaries of the time you have with your kids. Where will your kids spend specific holidays or school vacations? Can one parent take the child on long vacations? Under what circumstances can changes be made to the current visitation schedule? Also, this is the time to figure out how you can go about changing the custody agreement on a permanent basis if required.
  • The other important issue you need to discuss concerns the raising of your children. Discuss things like schools, activities, religious training, medical care, dental and vision care, sports, etc. Figure out who wants to be involved where, and make it happen. Also figure out how you’ll split costs for things like college or private school, or even emergency medical care if required.
  • If you run into problems or disagree with each other, listen to the mediator and try and arrive at an amicable solution. Compromise, because the other party will compromise as well, and ultimately, this will benefit your children.

Once the agreement is drafted and signed, you can and should expect your ex-spouse to honor it.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

How You Can Make Your Divorce Easier Using Mindfulness Meditation

Posted by: Gerald A. Maggio, Esq.

orange county divorce attorneys; The Maggio Law FirmCouples decide to go their separate ways for a variety of reasons. Sometimes the decision can be mutual, but no matter the decision or the reason, it is not a cause for celebration. Everything around you changes because the life you had built, the family you had nurtured has come undone.

During and after the divorce, you have to learn to adjust to a whole new life without your spouse. Your children also suffer with you now that their parents are living apart. You have to start afresh after a great deal of hurt and painful memories. Divorce has been the leading cause of depression and anxiety among adults in the United States.

If you are battling a divorce, you need to realize that you are not alone. You have support groups and therapy sessions to help people cope with difficult divorces. If those do not interest you, you could turn to mindfulness meditation.

What is mindfulness?

Mindfulness can be described as being open to all your experiences, the good or bad, without attaching yourself to them. Being mindful helps you learn how to be present instead of running away from what is happening. This process helps you open your mind and observe yourself in entirety.

Mindfulness meditation

The practice of mindfulness meditation can be traced back to Buddhist origins. It is widely practiced and has been proven to help reduce emotional pain, depression, and stress. Studies have shown that mindfulness meditation also helps decrease pain intensity.

How can mindfulness meditation help with a divorce?

When you are fighting through a divorce, any source of relief is welcomed. Meditation has proven to be an excellent method to relieve stress. With all those negative thoughts and emotions swirling around in your mind will only bog you down. Over time, it can be overwhelming for both your mind and body.

Being mindful of your situation as you fight through your divorce will help you be present in what can be described as one of the most unpleasant experiences of your life. But this will help you analyze your situation and learn from it. Instead of harboring bitter and hateful feelings, you will learn to let things go as you immerse yourself in the dreadful situation. Your body will feel more relaxed and you will slowly begin to gain more control over yourself and feel lesser negative about the situation.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Looking at the Big Picture During Divorce

Posted by: Gerald A. Maggio, Esq.

Top Orange County divorce lawyers; The Maggio Law FirmIn a recent workshop, there was a woman giving a lecture on the way our mind works. She took a large piece of paper and started to write down some of the positive emotions on the piece of paper, and then some negative emotions, followed by exciting emotions and later, by emotions causing fear, creating a paper filled with all kinds of emotions.

The emotions were placed strategically. Once the exercise ended, the sheet was folded about the size of an 8.5″ X 11″ piece of paper, and the square that was visible to the human eye only contained negative and fearful emotions.

Why?

The first question that comes to one’s mind is why are we only seeing the negative side of things and the emotions of fear and not the more positive ones also written down on the same piece of paper? The answer is because that is how our mind works. All of us have a wide range of positivity in our life and yet, when we are triggered, our mind can only set its sights on the negative stuff in our life.

Lessons to Be Learned

This is a great example to learn lessons from in life. Yes, your marriage didn’t work; yes, you may have been left wanting in life, yes, you were unable to achieve all that you wanted to with this relationship. Yet, much like the piece of paper, your relationship has had positives and negatives and during the talk of divorce, those positives shouldn’t be forgotten.

There was a reason you started a relationship with your spouse, and then went ahead and started a family and had kids. Before your divorce, they were someone you wanted to spend your life with and did. The fact that your life couldn’t work well together doesn’t mean their positives no longer exist.

This is why it is important to look at the big picture in life in general and in a divorce in particular. As much as you hate it, you will have to accept that even after a divorce, you cannot end all ties with your spouse. You will have a relation of being a parent even after the divorce and you’ll have to share that with your ex-spouse.

For that, it is important that you aren’t on bitter terms with the other spouse. Keeping view of the big picture which has some positives as well as negatives is helpful in divorce mediation. The process is all about cooperation, conversations and coordination. You will have to agree to the resolution of your divorce with your spouse. It would be easier to do so if you had some element of positivity in your mind about your spouse.

A divorce can be emotionally and physically draining, but to ensure that it is not financially stressful, it’s best if you opt for divorce mediation in Orange County or elsewhere, where you get to decide your future.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Do You Need a Lawyer if You’re Opting for Divorce Mediation?

Posted by: Gerald A. Maggio, Esq.

divorce lawyers in Orange County; The Maggio Law FirmDivorce mediation is touted widely as the way to go for spouses seeking a more pro-active role in deciding the outcome of their divorce settlement. With a host of divorce mediation specialist with a range of areas of expertise from psychology and counseling to just plain mediation, there may still be good reason to involve an attorney in the process. In fact, if you find a divorce mediation specialist with some legal background, all the better. And here’s why.

What it means to go it alone

Choosing to ‘do your own thing’ during divorce mediation may seem like the civilized thing to do, but it can be quite the opposite if you aren’t careful. When things start out, you may feel you’re in control and know your spouse better than anyone else, which is why you’re best qualified to handle the mediation. While that may be true, there are times when an objective third party helps. While a divorce mediation specialist is all that, they don’t have your interests as their only focus – they are equally invested in the outcome for your spouse. A divorce attorney on the other hand, has one goal – getting the best deal for you.

Negotiating muscle power

Divorce mediation requires a lot of back and forth between both parties, and sometimes contentious issues may reach a stalemate. A good divorce attorney may be more skilled at negotiating a better deal for you and getting the buy-in of your soon to be ex as well, a step critical to the mediation process which requires a ‘mutually agreeable’ outcome.

Why legal help matters

When a divorce lawyer comes on board during the mediation, quite often, they may uncover common issues that may have slipped through the cracks. having worked on hundreds of cases they are aware of potential problem areas that may not even have crossed your mind. Little issues that could flare up like details of what happens if one parent gets a new job or relocates to a different state in the future.  They can also offer insight on legal ramifications or possible outcomes, should a specific issue be taken to court.

A divorce lawyer is well trained in the area of documentation and paperwork related to divorce, as well as the intricacies of divorce law. Even of you and your spouse are able to talk your way to an acceptable solution, you may not have the legal expertise to create a document that holds in court. A legal expert will find the flaws or loopholes if any, and ensure the final agreement is watertight. A divorce mediation specialist can take you towards that solution and help you find that common ground, but ultimately, you will need to consult a lawyer to get things in order and to be done with your divorce as swiftly as possible.

Ideally, reach out to a reviewing or consulting divorce attorney with a background in mediation to be able to arrive at the most optimal solution that’s also valid and covers all bases.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

Divorce Mediation vs. Collaborative Divorce: What’s the Difference?

Posted by: Gerald A. Maggio, Esq.

orange county divorce mediation lawyers; The Maggio Law FirmDivorce mediation and a collaborative divorce may sound similar but the mechanics of these two approaches can be quite different. If you are unsure on which one is better suited to your situation, here is a look at how they work and what to expect.

Alternative to court trial

While there are some ways in which collaborative divorces and divorce mediation are starkly different, there are a few basics which remains the same in both cases. For one thing, they offer an alternative to a long drawn out and often expensive and messy battle in divorce court. Both offer a greater measure of control to you and your ex and don’t leave things to the discretion of a third party – the judge and your attorneys. However, there are some differences that could make one preferable over the other for you.

If the mediation or collaboration doesn’t work

In the event a divorce mediation doesn’t work out, you simply take your case to court to work it out before a judge. Your attorney presents your case and is already well-versed with the details so will be better equipped to represent you. However, if a collaborative divorce process falls through, your attorney is bound by a ‘no-court’ agreement. This is a document signed by you and your attorney and your spouse and theirs, stipulating that if the case heads to court, they must necessarily withdraw as your attorney. You will then both need to hire new lawyers who will want to do their own research ground up, resulting in some additional expenses and time.

Who’s involved?

In the case of a divorce mediation, an independent neutral third party is brought in to mediate. The operative being ‘neutral’. In other words, neither of your divorce attorneys can mediate. Instead, you and your spouse meet with the mediator (and attorneys when required), to work through your differences in a neutral environment. A mediator does not push you towards a settlement or agreement, but simply helps diffuse the situation and encourages conversation and conflict resolution so critical things like custody, alimony and division of assets can be worked out.

In the case of a collaborative divorce, both spouses and their respective divorce attorneys work together to arrive at a mutually acceptable solution through four-way meetings. The benefit here is you have legal counsel to support you throughout. It is a more effective and less expensive alternative to litigation but gives room for lawyers to negotiate and present arguments for you.

Confidentiality issues

In many states, the discussions during divorce mediation are protected by mediation confidentiality laws. Collaborative divorce discussion are typically not. You can however, overcome this hurdle by getting everyone to sign confidentiality agreements before you begin the collaborative process.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.

3 Things That Can Cause Divorce Mediation To Fail

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; The Maggio Law FirmWhen couples decide to split, the decision they take can often have far-reaching effects. Hence, it is important that people choose the right method to get divorced. The easiest and most popular method of getting divorced is through divorce mediation. This is a method where the spouses are empowered to come to terms with one another and resolve the divorce issue themselves.

Despite it being a fast, empowered, stress free and conflict free way of getting divorced, sometimes, even divorce mediation can fail. This blog outlines the 3 reasons why it can fail, so that you can avoid them and make your divorce mediation a success.

Expectations Not Matching Reality

People to people contact, the internet and other online resources have a number of different advantages, but one disadvantage of the process can be the spreading of misinformation. Some of the spouses that come for Orange County divorce mediation have a belief that everything that their spouse has is theirs. When spouses have such unrealistic expectations, it is hard to negotiate with them because they want the other spouse to merely accept what is being offered or risk losing all of it in a litigated divorce.

Despite the fact that their belief is wrong, these spouses and their sky high expectations can decrease the chances of a meaningful conversation and a resolution.

Engaging in Good Faith Negotiation

The key to success in Orange County divorce mediation is having good faith during negotiations. This is not a game of chess or a game of hearts where you keep your cards and your moves close to your chest. For mediation to work, the spouses need to trust one another and should outline all of their options on the table. Inability to do so can result in a breakdown of negotiations.

A good faith negotiation is where both of the spouses feel willing to negotiate and provide true, relevant information beforehand. Lying, keeping information and assets hidden can be taken in bad faith and might ultimately lead to a failure of the mediation process.

Trying to Use Mediation as a Way of Mending Broken Bridges

There are some spouses who enter mediation, not with the goal of having a peaceful resolution to their divorce process, but instead to salvage their marriage. These spouses believe that unlike a litigated divorce, the pace of this divorce can be dictated. Hence, they try and slow the pace down only to buy time to salvage a relation.

This is often the wrong approach to take, since once another spouse has decided to take such a big step of ending the relation, there is a minute chance if any, of them going back on their word and the only thing delaying mediation achieves, is getting the two embroiled in a bitter litigated divorce.

Getting divorced in California can be complicated.  Download our free eBook, 18 Important Things to Know About California Divorce to educate yourself on the process.  

Divorce Mediation Becoming Popular in California & the U.S.

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; The Maggio Law FirmAlthough the rate of divorce has actually declined in recent years, there is still a tremendous amount of pressure on the family law court system which often has more cases to handle than judicial officers available to handle them.  In addition to that, most divorce cases that end up in court aren’t always the most straightforward ones which mean that they will take up a large portion of the courts time further delaying the new up and coming cases.

A New Way

The fact that people are having to wait for their cases to be heard and because the court procedure of getting a divorce can often lead to parties contesting against one another leading to bitterness, more and more people in California and elsewhere are looking towards a different way to get divorced, one that offers them more comfort and functionality than the court system.

California divorce mediation has thus started to become a popular method for spouses to use and end their relations. There are many reasons for the growing popularity of mediation over divorce litigation. One of them is the pace of their proceedings. Most people who come to court are looking for a speedy remedy. Imagine you hate your spouse for their extramarital affair but the delay in your case coming in front of the judge means you’ll have to stay with him/her to maintain the strength in your case.

Greater Comfort and Peace

The comfort argument is often used to describe divorce mediation and in reality that is one of the reason why it is growing in popularity. Divorce is a personal matter arising out of issues between two parties and more often than not they would like to keep that private. The stigma attached to divorce is enough to deal with and no spouse would want themselves to have to deal with people in and around them talking about the personal issues that led to their divorce.

In courts that is hard to manage, but as far a mediation is concerned your mediator will make sure to keep your reasons for divorce private. Since mediation is a process that is decided between the two spouses with no authority interfering in their decision making. The two spouses tend to stay away from bitterness and instead use mutual collaboration to solve their issues. This helps ensure that the process is done smoothly, without many fights or arguments with the divorce mediator making sure the atmosphere is kept peaceful.

How to Propose Divorce Mediation to Your Spouse

Posted by: Gerald A. Maggio, Esq.

Orange County divorce mediation attorneys; The Maggio Law FirmPeople who are undergoing a divorce or have gone through one will know that the stakes are always high when it comes to an Orange county divorce. Increasingly for most people turning these stakes into an amicable solution that can result in an easy, amicable, and low cost divorce is possible because of mediation.

Marriages though need two spouses to make and similar is divorce. The choice of how you’ll end your relation is one that depends on both of the spouses.  If you are willing to end it by going through Orange County divorce mediation, you will need to propose it your spouse first.

How you propose Orange County divorce mediation to your spouses will determine if you end up having a low cost, stress free divorce or a high cost, bitter divorce.

Proposing Divorce Mediation to Your Spouse

If both of you are on talking terms there is no one better to propose mediation than you. Mediation can be a tricky one for spouses to understand the first time and you’ll need to allay the fears and apprehensions of your spouse.

But if you and your spouse are not on amicable terms and are not communicating with each other properly, it might be a good idea to use a neutral third party that is well respected by your spouse to propose it to him or her. If your spouse seems a little interested but not entirely sure, schedule a meeting with an Orange County mediator for them to talk and clear their minds.

Here are a few tips for spouse looking to propose mediation.

  • Give reasons to support mediation that work best for both of the spouses such as its fairness and low cost.
  • Before you set out to tell the mediation tale to your spouse, make sure you have thoroughly researched and read about it. You should know how it works and its costs etc. to truly be able to convince your spouse.
  • Give them choices for mediators and let them pick the best one. This will let them feel in charge and more ready to accept the process.
  • Keep it subtle. Overselling is never good, neither in the commercial world nor with your spouse. Keep your description of the process brief, focusing only on the major talking points at best. If you try to oversell you spouse might have suspicions you want this to gain an advantage.
  • Whatever you do, try not to be forceful about the matter. Stay clear of threats and ultimatums. Your spouse needs to make the decision with her own free that is the only way mediation will prove a success.
  • If at first you don’t succeed, try again. Be simple and effective with your words. Make them realize the importance of the process for the children involved in the marriage.
 
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