1.

What is collaborative law and how does it affect my divorce case in Orange County?

2.

How does the court ordered mediation process on custody cases work in an Orange County divorce case?

3.

Can my spouse and I also attempt mediation on the financial issues of our divorce case in Orange County?

4.

What happens if my spouse and I do not settle at mediation?

1. What is collaborative law and how does it affect my divorce case in Orange County?

Collaborative law is simply a resolution process in which both spouses attempt, typically with the assistance of a lawyer, to resolve their divorce case outside of the court process. 

Collaborative law is very similar to private mediation and has the same goals - to avoid unnecessary disputes in an expensive divorce case.    It is a voluntary process and one that either party can participate in and stop participating in at any time.

If the process does break down and proceeds to court, neither attorney that was involved in the process may become the attorney of record and represent either party. 

The collaborative process only works if both spouses cooperate with one another and provide full and complete disclosures of income, assets, debts, etc. 

2. How does the court ordered mediation process on custody cases work in an Orange County divorce case?

If there is a disagreement over child custody or visitation in the matter before the Court, this issue shall be submitted to mediation before the Court hearing.  Mediators are employees of the Superior Court, Family Court Services Department.

In mediating family law issues, the parties meet together with the mediator. All communications with the mediator are confidential. Required confidentiality does not limit reports of known or suspected child abuse, nor is the mediator prevented from disclosing information involving a person who threatens injury or harm to the intended victim(s) and/or their property.

In mediating cases with domestic violence allegations, special guidelines will be followed: Parties will be interviewed separately. Mediators will be assigned in a male/female team. The battered spouse may, if requested, be accompanied in the mediation session by a support person who does not participate in the session. After both parents have been interviewed separately, they may be brought together only if both parties and the mediator team determine it to be safe for the victim. If the domestic violence is disclosed in a regular mediation session where there was no prior indication, or when there is intimidation of one spouse by the other, the parents may be separated and interviewed individually.

A mediation appointment shall be given to the moving party prior to the setting of the time for the OSC hearing. If agreement is reached prior to the mediation appointment, BOTH parties and/or their attorneys shall contact Family Court Services at (714) 935-6550 to cancel the appointment and advise that office that an agreement was reached.

In the event that only one party contacts Family Court Services, the appointment shall not be canceled or rescheduled.  A $50.00 sanction may be imposed by the Court for failure to attend mediation, in the absence of an agreement.

Conduct of Mediation: All mediation proceedings shall be held in private and all communications from the parties to the counselor shall be deemed official information within the meaning of Evidence Code Section 1040. The mediator may exclude attorneys from the mediation sessions between the parties. Such exclusion shall be in the sole discretion of the mediator.

The mediator may conduct one or more mediation sessions. The mediator may request that the Court continue any scheduled court hearing in order to accommodate additional mediation sessions. The attorneys need not be present at the initial or subsequent mediation sessions unless specifically requested to attend by the mediator. The mediator will not discuss the case with only one counsel present. In those instances where the mediator has requested counsel to appear and an appointment has been set, failure by counsel to appear, absent good cause, will constitute good ground for the imposition of sanctions.

In the event that the parties are unable to agree, the mediator may meet and confer with the parties and their counsel in an effort to bring about a settlement. Parties and counsel are ordered to use their best efforts and negotiate in good faith with the mediator in an effort to avoid a contested hearing or trial on the custody/visitation issue. Any party or attorney who fails to meet and confer in good faith with the mediator shall be subject to appropriate sanctions after notice and hearing.

At any time during the mediation process the mediator may recommend to the court that an investigation and report be made pursuant to Family Code Section 3110 et seq.; that a referral is made pursuant to Evidence Code Section 730; or that independent counsel be appointed for the child/children pursuant to Family Code Section 3150.

It is the policy of this court to encourage mediation of custody and visitation disputes.

Sufficient time in the discretion of the court should be allowed to permit successful completion of the mediation process.  At the conclusion of each mediation session, absent an agreement of the parties settling all issues of custody and visitation, the mediator shall advise the court whether further mediation may be helpful in resolving this matter. If so, the court may order the parties to return for further mediation.

If the mediator determines that mediation is unable to assist the parties, the mediator shall advise the court whereupon the court shall determine the issues after hearing.

While the mediation process is ongoing, the court may make temporary orders concerning custody and visitation until the mediation process is completed.

A mediator shall not testify on any mediation conducted whether or not an agreement is reached.

3. Can my spouse and I also attempt mediation on the financial issues of our divorce case in Orange County?

Yes.  That process is a “private” mediation and typically takes place in front of a retired judge that you pay to “mediate” your case.  Thousands of divorce cases every year settle at private mediations because with the assistance of each spouse’s lawyer and the private judge, the parties can come to the table and resolve their disputes.

4. What happens if my spouse and I do not settle at mediation?

If you do not settle at mediation, then your case proceeds in the court process.  However, just because your case does not resolve at mediation does not mean that settlement is not likely.  Many cases are able to resolve at least some issues at mediation and even those that do not at least move the parties closer to understand the major points of contention so the parties, through the lawyers, can continue to communicate on resolving the disputes.

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