Many divorce professionals such as attorneys, psychologists and social workers have become dissatisfied with the limitations of the court system in helping families through the turmoil of a divorce, and the negative impact on families caused by litigation. During the past 25 years, there has been a growing movement toward alternatives to litigation. These include mediation, arbitration and collaborative law.

Litigation is the traditional way to resolve the disputes that occur in a divorce proceeding. Even though California has no-fault divorce, this simply means that fault does not have to be proven, and a divorce cannot be contested. But heated disputes can and do occur about issues such as how to share the children, how much support should be paid, and how the property should be divided. In a litigated divorce, each spouse hires an attorney to file motions for temporary orders, to argue those motions in court, and to conduct discovery (depositions, interrogatories, demands for production of documents) in order to obtain information necessary for trial or settlement. If the case cannot be settled, there is a trial, at which the spouses and other witnesses may testify under oath, and the judge makes a decision on all the issues. In California, divorce trials are open to the public, and the court file cannot be sealed, so all the "dirty laundry" is aired in full public view.

Litigation is very expensive and stressful for the family. Moreover, in litigation, the couple gives all the power to the judge, who must make decisions on child custody, support and property division based upon the evidence. Usually, the evidence that is admitted at trial is only 10% of what the couple really want and need the judge to know about their family, but the rules of evidence limit what the judge can hear and read. If one party is unhappy with the judge's decision, there may be an appeal, which causes further delay and expense.

Mediation is an alternative way to resolve disputes outside the courtroom. In divorce mediation, the couple hires a trained, neutral and impartial mediator to facilitate their discussions with each other and to help them resolve the issues in their divorce by communicating with each other in a safe, private setting.

What are the advantages of mediation?

• Mediation is confidential
• Mediation is voluntary
• The spouses make their own decisions instead of giving all the decision-making power to a judge
• The couple can go at their own pace instead of being subject to court-imposed deadlines
• Mediation is far less expensive than litigation

Private divorce mediation should not be confused with mediation that is required by the court. In California, mediation is ordered for all court cases in which the parents are disputing custody of their children. However, in San Diego County, this mandatory custody mediation is not confidential, and if the parents do not reach agreement, the mediator will make a recommendation to the court on custody and visitation.

In contrast, private divorce mediation is always confidential, meaning that if the mediation does not produce an agreement and the case ends up in court, the mediator cannot be compelled to testify about any of the discussion during mediation. The parties can disclose to the court that they tried mediation, but all of the discussions during mediation are confidential and not admissible in evidence.

How to choose a mediator:

In California, mediation is unregulated, meaning anyone can call himself or herself a mediator. No special training or license is required. While a mental health professional may be a good choice to mediate child-sharing issues, when there are legal issues such as support and division of property, the mediator should have extensive knowledge about California family law and also training in mediation techniques. A reputable mediator will have taken at least 40 hours of basic mediation training, and conduct the mediation in accordance with the Model Standards of Practice for Family and Divorce Mediation, which were developed by the Association of Family and Conciliation Courts, the American Bar Association, and other professional organizations. There should be a written mediation agreement, setting forth the expectations for the parties to make full disclosure of all income and assets, and disclosing the basis for the fees charged by the mediator.

What is the role of the mediator?

The mediator is not an arbitrator and will not make decisions for the couple. Rather, the mediator will help the couple develop an agenda for the mediation sessions, and assist them in working through the issues and reaching a settlement. Although the mediator may be an attorney, he or she does not represent either party. The mediator should explain the law as it applies to each issue, but not give legal advice to the couple. Most mediators will suggest that each party have an independent attorney to provide legal advice during the mediation process, and to review any written agreements before they are signed. Remember, mediation is not a substitute for independent legal advice.

What are the disadvantages of mediation?

Mediation is not for everyone. The couple does not need to be amicable; after all, they are getting a divorce! But they do need to be able to express their concerns to each other, to listen to each other, and to share information with each other. Mediation may not succeed if one spouse feels less powerful than the other, or feels intimidated or controlled by the other spouse, or where there has been physical or emotional abuse during the relationship. Sometimes one spouse will try to use mediation to promote their own agenda, and to coerce the other party into accepting an unfair settlement. A good mediator will stop the mediation if this occurs.

Arbitration is closer to litigation than mediation. In arbitration, the parties, usually with the assistance of their attorneys, hire a neutral and impartial arbitrator to hear testimony, receive evidence, and issue a decision, called an award. The arbitrator may be an attorney or a retired judge. The parties can agree in advance that the arbitration will be binding. If the arbitration is not binding, the parties can contest the arbitrator's award in court. Sometimes the spouses have entered into a prenuptial agreement before their marriage which requires arbitration in case of divorce, or they may choose arbitration over litigation because it is private and less formal than a court trial, and can be scheduled at the convenience of the parties. However, arbitration, unlike mediation, is not confidential. A court reporter will be present to record the testimony, so that a transcript can be made if necessary. In arbitration, as in litigation, the parties give up decision-making power to a third party - the arbitrator.

Collaborative divorce is the newest dispute resolution process. In a collaborative divorce, the parties sign a Collaborative Law Participating Agreement in which they agree not to go to court while they are negotiating the issues in their divorce. The Collaborative Agreement represents a commitment by both spouses and their collaborative counsel to settle the case. The Agreement is signed by both parties and their collaborative counsel. Attorneys who practice collaborative law must have specialized training, and in a collaborative case, they must agree that if one party decides to go to court, the collaborative counsel who represents the parties must withdraw, and the parties must retain new counsel.

Advantages of collaborative divorce:

• The collaborative process is designed to encourage the parties to understand each other's point of view, even though they will not agree on everything.
• It is designed to encourage the free and full disclosure of information necessary to resolve the issues in the case, without the need for expensive and time-consuming formal discovery procedures such as depositions, interrogatories, and demands for production of documents.
• In a collaborative case, facts and figures do not need to be distorted for presentation to a judge, because the parties make all the decisions themselves, with the assistance of their counsel.
• Collaborative is significantly less expensive than litigation.

Collaborative divorce is different from mediation because each party has a collaborative attorney to advise him or her throughout the process. In mediation, the parties often choose to proceed without counsel, and although they may hire an attorney review the final agreement, there is great psychological pressure on parties not to change the agreement once it has been reduced to writing. Also, a party may be intimidated or coerced during mediation, and the mediator may be unaware of what is going on behind the scenes. In collaborative divorce, the process is transparent, and the collaborative attorneys share information about their clients with each other when it is helpful to resolution of the case. Negotiations take place during four-way meetings in the office of one of the attorneys.

Other members can be added to the collaborative team. Besides two collaborative attorneys, the couple will need a financial specialist, who is a CPA, Certified Financial Planner or Certified Divorce Planner with special training in the collaborative process. The couple select one neutral and unabiased financial specialist to assist them and their attorneys with the financial aspects of the case, and to oversee the exchange of information and documents necessary to explore all the issues.

If emotional issues are getting in the way of communication by the parties, the collaborative attorneys will recommend that one or both parties hire a coach, who is a mental health professional trained in the collaborative process. The coach does not provide therapy, but helps the party in learning new communication techniques to deal with his or her spouse not only during the collaborative process, but in the years after the divorce. Finally, if there are children who are experiencing emotional problems due to the separation, a child specialist may be hired to interview the children and advocate for their interests during the collaborative process.

Collaborative divorce is widely recognized as the wave of the future. It has significant advantages over mediation:

• Each spouse has the support of an attorney and independent legal advice throughout the process.
• Collaborative attorneys have received extensive training in both mediation and the collaborative process.
• Negotiations take place during four-way meetings between the spouses and their attorneys.
• Other professionals such as the financial specialist, coach and child specialist can be added to the team.
• Collaborative divorce is ideal for situations where mediation will not work because one spouse feels intimidated or controlled by the other spouse, or less powerful, or less informed.

How do I find a collaborative attorney?

Most major cities in California have collaborative law groups with websites that list their members. One source of information is the website of the International Association of Collaborative Professionals, www.collabgroup.com, which has links to collaborative law groups throughout California and other states. In San Diego County, the group is known as The Collaborative Family Law Group of San Diego, at www.collaborativefamilylawsandiego.com.