Is Divorce Mediation Legally Binding?

by | Apr 25, 2018 | Uncategorized

Divorce mediation can provide a useful alternative to working with attorneys, but there are some details you need to know to make it legally binding. Photo: MrHayata/Creative Commons License

Divorce mediation can provide a useful alternative to working with attorneys, but there are some details you need to know to make it legally binding. Photo: MrHayata/Creative Commons License

Legally Binding Agreements Are Possible with Divorce Mediation

Frequently someone will tell me a particular family law case is not appropriate for mediation because they don’t believe they will get a legally binding agreement out of the process. This frustrates me, because it is so far from the truth.  Let’s explore the key question: is divorce mediation binding?  The short answer: yes.  There are easy ways to make sure your divorce mediation is binding. Let’s talk about them in more detail.

Be sure you understand the limitations of a handshake agreement in mediation.

Handshake agreements are NOT binding

Often, parties to a mediation will make small agreements, or “handshake” agreements.  These type of agreements will not be binding on anyone if they end up being fought over in litigation.

There are times when people mutually agree on a handshake to seal a deal to make it enforceable. Mediators sometimes employ simple handshake agreements in divorce mediation.  Perhaps two parents want to agree in good faith they will pay for a child’s college tuition. But they don’t want to put themselves in a position of violating a court order if for some reason anything changes due to loss of employment or an expensive medical emergency, which would make paying for college impossible. These folks will agree in principle — or morally — they will work cooperatively to pay for college.  However, such moral or handshake agreements are NOT binding.

Put your mediated agreement in writing if you intend it to be legally binding. Photo: Antonio Litterio/Wikimedia

Put your mediated agreement in writing if you intend it to be legally binding. Photo: Antonio Litterio/Wikimedia

To make divorce mediation legally binding, get it in writing

When you are ready to sign off on an enforceable agreement, get it in writing. Most attorney mediators will create the legal document for you to sign. If you are working with a non-attorney mediator, he or she will probably prepare a memorandum of understanding. You can then take this paperwork to an attorney to draft a binding document. Once all parties sign, the agreement is binding like any other contract.

Follow the Code of Civl Procedure to ensure agreement enforcement

The California Code of Civil Procedure (CCP) section 664.6 provides a way for agreements reached pending settlement to be enforced by the court.  Section 664.6 provides:

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

Sometimes when parties reach an agreement during their divorce mediation, I will write up the notes of the settlement on a legal pad and note it is a binding agreement pursuant to CCP 664.6. When the parties sign, the agreement is binding and the Court will enforce it.

Have your attorney review your mediated agreement

Before anyone signs on the dotted line, I always advise parties to have a lawyer review their agreement. As the mediator, I have to be neutral like Switzerland. This means I can’t advise you about your legal rights or your best interests without violating legal ethics. Parties should have a lawyer who can review documents and provide the necessary legal advice before signing.  This reduces your risk, and guarantees everyone is making informed decisions.

Only a judge can ensure your mediated divorce settlement is legally binding and enforceable under the law.

Only a judge can ensure your mediated divorce settlement is legally binding and enforceable under the law.

Only a judge can make your agreement legally enforceable

It is your option to send your mediated agreement to a judge for signature. This is particularly common when you use mediation to create a final marital settlement agreement for your divorce. The mediator sends the signed agreement to the Court for the judge’s signature. Once the judge signs, the agreement becomes an order of the court.  This means it is enforceable just like any other order of the court. This is the only way you can turn to the legal system in the future if someone violates any portion of the agreement.

 

Does mediation sound like the right process for you?  Call us at 858-410-0144 to make an appointment with San Diego Divorce Mediator Shawn Weber today.

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What Does Alternative Dispute Resolution Mean?

by | Jul 13, 2017 | Uncategorized

The term “alternative dispute resolution” (or “ADR”) is often used to describe conflict resolution without going to court.

If you find yourself facing a family law matter, you might first ask, “How do I avoid going to court?”   Parties can use ADR for any family law issue, whether it’s a divorce, child custody dispute, or support issues.  But, there is a lot of confusion about what ADR practice actually entails.  Professionals and parties alike often use words like “mediation,” “arbitration,” and “private judging” interchangeably.  However, these terms could not be more different.

The main theme of all of these alternative dispute resolution options is that the mediator, arbitrator, or private judge acts as a neutral.  They are not there to advocate for or legally advise either party.  Rather, they are there to get the parties to a resolution, or settlement.  However, the powers and abilities that they have depends entirely on which process you choose.

MEDIATION

Mediation is typically what most people think of when they think of staying out of court and reaching an agreement.  A mediator’s job is to help the parties communicate with each other so they reach an agreement themselves.  A mediator does not make any orders or decisions for the parties.  Rather, a mediator facilitates an effective dialogue between the parties.  Sometimes, a mediator might provide legal information about what the law says, but will never provide legal advice to either party.  Mediation allows parties to never go to court, because it is a private process outside of court.  Mediation is usually the most informal process of these three options.

You can utilize a mediator in a couple different ways:

Mediating with Just the Mediator and No Attorneys in the Room

You can work with the mediator exclusively to settle all of your issues.  The mediator has training to help resolve conflicts.  She can help you uncover areas where you agree and find solutions for areas where you do not. Because the mediator is a neutral, however, you are wise to consult with an attorney outside of the mediation sessions.

Mediated Settlement Conference with Attorneys Present

If you prefer to have your attorney present, you can schedule a neutral settlement conference with your mediator.  The mediator leads the discussion as neutral and your attorneys participate in the discussions.  This can be done in lieu of or in addition to litigation depending on the posture of your case.  Because your attorney is in the room during the negotiations, you can get your advice in real time during the meeting rather than having to schedule a later appointment with your advising lawyer.

ARBITRATION

Arbitration is similar to a trial at court.  However, the arbitrator is the one who makes the decision rather than a public judge.  Each side will present their case to the arbitrator.  They might use the same procedural tools as a court process might require, such as discovery and evidence.  An arbitrator then makes a decision based on each side’s case.  Arbitration takes place outside of court, and is usually more relaxed and informal than the courtroom.

Parties might choose arbitration because they want a private, third-party neutral to make a decision for them, but don’t want to set foot inside a courtroom.  There are two kinds of arbitration – either binding or non-binding.  Binding arbitration means that the arbitrator’s decision is final, and the parties must accept that decision.  However, non-binding arbitration means that if the parties disagree with the arbitrator’s decision, they can go back into court to have a judge decide.

PRIVATE JUDGING

Private judging is very similar to arbitration, except a private judge has the ability to make binding court orders the same way a public judge does.  With private judging, parties generally go through the same process as litigation.  This might include procedures like filing a motion at court, but a private judge would determine the case instead.

A private judge is usually much more accessible than a public judge.  This is because private judges are typically experienced family law attorneys, or retired former judges.  Their schedules tend to be more flexible than the impacted calendars of current sitting judges.  Private judges are also able to devote more focus to one case at a time.  With court, a matter may take several months before a court even has time to hear it.  Parties might choose private judging if they want to have the structure and formalities of litigation, but don’t want to go through the courtroom or deal with the wait times of the court’s calendar.

There are many different options for conflict resolution.  It’s important to know which one suits your personal situation best, as each process has its own pros and cons.  It’s a good idea to discuss your options with a knowledgeable family law attorney who is skilled with ADR practice.  He or she can help you navigate the intricacies of a family law matter, no matter which process you choose.

What Does Alternative Dispute Resolution Mean?

by | Jul 13, 2017 | Uncategorized

The term “alternative dispute resolution” (or “ADR”) is often used to describe conflict resolution without going to court.

If you find yourself facing a family law matter, you might first ask, “How do I avoid going to court?”   Parties can use ADR for any family law issue, whether it’s a divorce, child custody dispute, or support issues.  But, there is a lot of confusion about what ADR practice actually entails.  Professionals and parties alike often use words like “mediation,” “arbitration,” and “private judging” interchangeably.  However, these terms could not be more different.

The main theme of all of these alternative dispute resolution options is that the mediator, arbitrator, or private judge acts as a neutral.  They are not there to advocate for or legally advise either party.  Rather, they are there to get the parties to a resolution, or settlement.  However, the powers and abilities that they have depends entirely on which process you choose.

MEDIATION

Mediation is typically what most people think of when they think of staying out of court and reaching an agreement.  A mediator’s job is to help the parties communicate with each other so they reach an agreement themselves.  A mediator does not make any orders or decisions for the parties.  Rather, a mediator facilitates an effective dialogue between the parties.  Sometimes, a mediator might provide legal information about what the law says, but will never provide legal advice to either party.  Mediation allows parties to never go to court, because it is a private process outside of court.  Mediation is usually the most informal process of these three options.

You can utilize a mediator in a couple different ways:

Mediating with Just the Mediator and No Attorneys in the Room

You can work with the mediator exclusively to settle all of your issues.  The mediator has training to help resolve conflicts.  She can help you uncover areas where you agree and find solutions for areas where you do not. Because the mediator is a neutral, however, you are wise to consult with an attorney outside of the mediation sessions.

Mediated Settlement Conference with Attorneys Present

If you prefer to have your attorney present, you can schedule a neutral settlement conference with your mediator.  The mediator leads the discussion as neutral and your attorneys participate in the discussions.  This can be done in lieu of or in addition to litigation depending on the posture of your case.  Because your attorney is in the room during the negotiations, you can get your advice in real time during the meeting rather than having to schedule a later appointment with your advising lawyer.

ARBITRATION

Arbitration is similar to a trial at court.  However, the arbitrator is the one who makes the decision rather than a public judge.  Each side will present their case to the arbitrator.  They might use the same procedural tools as a court process might require, such as discovery and evidence.  An arbitrator then makes a decision based on each side’s case.  Arbitration takes place outside of court, and is usually more relaxed and informal than the courtroom.

Parties might choose arbitration because they want a private, third-party neutral to make a decision for them, but don’t want to set foot inside a courtroom.  There are two kinds of arbitration – either binding or non-binding.  Binding arbitration means that the arbitrator’s decision is final, and the parties must accept that decision.  However, non-binding arbitration means that if the parties disagree with the arbitrator’s decision, they can go back into court to have a judge decide.

PRIVATE JUDGING

Private judging is very similar to arbitration, except a private judge has the ability to make binding court orders the same way a public judge does.  With private judging, parties generally go through the same process as litigation.  This might include procedures like filing a motion at court, but a private judge would determine the case instead.

A private judge is usually much more accessible than a public judge.  This is because private judges are typically experienced family law attorneys, or retired former judges.  Their schedules tend to be more flexible than the impacted calendars of current sitting judges.  Private judges are also able to devote more focus to one case at a time.  With court, a matter may take several months before a court even has time to hear it.  Parties might choose private judging if they want to have the structure and formalities of litigation, but don’t want to go through the courtroom or deal with the wait times of the court’s calendar.

There are many different options for conflict resolution.  It’s important to know which one suits your personal situation best, as each process has its own pros and cons.  It’s a good idea to discuss your options with a knowledgeable family law attorney who is skilled with ADR practice.  He or she can help you navigate the intricacies of a family law matter, no matter which process you choose.

How much does divorce mediation cost?

by | Feb 18, 2017 | Uncategorized

What is the divorce mediation costDivorce Expenses

A wedding in the United States costs on average more than $26,000. This doesn’t include the honeymoon. (Source: Average Wedding Cost) Add raising kids at a cost of $233,610 per kid and the cost of your family can be very, very high. (Source: It costs $233,610 to raise a child) Surprisingly, even with the high rate of divorce in America, people think very little about the cost of divorce until it is upon them.

Most Americans are shocked at the many tens of thousands of dollars it can take to get a divorce. In my experience, a contested divorce can be anywhere from $20,000 to $100,000 for the average couple in San Diego County. (This figure is based on the averages I have seen in my personal practice back when I used to litigate.)

Contested divorce expenses are usually higher because of high legal fees. People often overlook other “hidden” divorce expenses like the cost to refinance or sell a house. Not to mention reorganizing their social security, so that they are covered for when they retire and visit a Florida, New York, Illinois Social Security office, or any other region to make sure that they are prepared. Additionally, there can be increased costs for couples to have anything close to the same lifestyle they had before the divorce.

Moving to different households means that couples can’t pool their resources and efforts as they did before. When you are buying two gallons of milk instead of one, life just costs more. Finally, it is hard to put a price tag on the emotional toll on the family in tears, sleepless nights, stress and worry that are just part of an adversarial divorce.

Conflict Is Expensive

All in all, divorce expenses in adversarial or litigated cases with a divorce lawyer are worse because conflict is expensive. Conflict simply costs more than harmony. Spending money to fight, investigate, litigate and generally be adverse simply drives up the price tag.

Conversely, peaceful options for divorce such as collaborative divorce or mediation can help keep divorce expenses in check. At my family law office in Solana Beach, California, the average divorce mediation cost falls anywhere between $5,000 and $9,000.

Of course, the costs largely depend on the complexity of the case and the level of conflict. As a mediator, folks pay me for my ability to help manage and resolve disputes. When the conflict is higher, that means I have more work to do, which, in turn, makes it cost more.

Want to hire a mediator to
negotiate your divorce agreement?
Call us at 848-410-0144.

Divorce mediation cost is generally less than going to court. There are several reasons for this.

Divorce Mediation is Cheaper Because of Informal Discovery.

At court, formal discovery is one of the most costly elements of a case. In a divorce mediation process, discovery is often done informally with much lower costs. A divorce attorney can make tons of money off of depositions, demands for production of documents and interrogatories, each of which requires specialized formal responses at a high hourly rate.

In mediation sessions, parties choose less costly approaches to value assets than in litigation. Agreement puts an end to the need for forensic purity. If the parties agree on a valuation method, or even a value, then there is no need to hire a costly expert.

Divorce Mediation is Cheaper Because The Parties Drive the Process

photo of divorce mediation sessionIn mediation, parties drive the process as opposed to court where the lawyers control everything. In litigation, you pay for time spent on the case at the lawyer’s hourly rate. If your attorney is the ones driving the bus, then the bills will pile up.

In contrast, divorce mediation encourages the divorcing couple to drive the process and do a lot of the work themselves. The mediator is there to guide and facilitate, but the parties make decisions.

It’s still good to bring in lawyers, but in mediation the lawyer’s role is more consultative than directive. You can use your consulting attorney on an as-needed basis and avoid paying her to run the entire case. Get your legal advice and make your decisions with the information you need. But let mediation keep costs down by keeping the lawyers out of the day-to-day management.

Divorce Mediation Cost Is Low Because There Is Less Involvement with the Courts.

In a litigated case, there is a lot of interaction with the court. Lawyers file motions and must attend hearings. Any interaction with the courts will cost you in billable hours.

Plus, courts are overburdened and slow. A simple issue can take months to resolve. Formal legal rules and procedures add to the costs by forcing your attorney to do more work. This is why getting a good lawyer, like those at Sisemore Law to name an example, is important.

In contrast, mediation cuts down on the need to interact with the court. In my mediation practice, I can resolve most concerns in a fraction of the time that a court would take. This keeps the divorce mediation cost lower. Less formality translates to faster outcomes and fewer billable hours.

Divorce Mediation Cost is Low Because It Reduces Conflict and Reduces Emotional Damage

You really can’t put a price tag on the human cost families feel when parties litigate. Divorce is tough enough. Litigation can actually make the conflict worse.

For example, children suffer as a result of the conflict. (Aside from therapy bills, your children may have a lifetime of emotional cost if exposed to conflict.) Instead of fighting, reducing the conflict by finding solutions to problems greatly reduces the impact on the kids.

Also, people going through a divorce feel a huge amount of stress as it is. Conflict just adds to that stress. This takes us to things like religion, in which so many people find comfort and peace. Having faith in something may restore your faith in other aspects of your life. Prayers are also a common form of reassurance, especially for struggling couples. Read up about goodnight prayers for couples if you think religion may be the answer. With a resolution through mediation, people are more knowledgeable about how to resolve issues without harming each other, their children, and others, while experiencing peace.

Does mediation sound like the right process for you?
If so, then give us a call at 858-410-0144 to schedule your first session now.

See Also:

https://weberdisputeresolution.com/explore-our-services/mediation/

https://weberdisputeresolution.com/early-intervention-mediation-settlement-conference-divorce-case/

https://weberdisputeresolution.com/working-with-attorneys-in-mediation/

https://weberdisputeresolution.com/five-questions-ask-hiring-divorce-mediator/

https://weberdisputeresolution.com/is-divorce-mediation-legally-binding/

My Latest Appearance on San Diego ESPN Radio Real Talk San Diego

by | Aug 23, 2016 | Uncategorized

Shawn Weber the Dolphin Lawyer on ESPN Real Talk San Diego talking about mediation

The “Dolphin Lawyer” Shawn Weber

Shawn Weber on the Radio

I had a blast on Real Talk San Diego on ESPN Radio AM 1700 with co-hosts Ryan White and Karen Kaseno as well as my good friend and fellow University of San Diego School of Law Alum, Brian Dirkmaat, of the Coast Law Group. I enjoyed sharing my insights about Divorce Mediation and my Dolphin Lawyering philosophy. Give it a listen and let me know what you think.

Listen to the Podcast Here:

https://soundcloud.com/realtalksandiego/shawn-weber-brian-dirkmaat-08-18-16