How Does Mediation Differ From The Court Process?
In the mediation process, typically, both parties and both attorneys meet at a third party mediator’s office, where typically they are placed across the table from each other with the trained mediator, typically a retired judge or highly experienced family law attorney, who gets paid a certain hourly rate for his time, serving as a kind of referee. The parties will go issue by issue with this mediator; real property, custody, visitation, child support, spousal support, and with the mediator’s assistance the parties will try to come to some form of an amicable resolution.
This differs greatly from the court process, where you show up for a hearing on the court calendar for custody visitation, child support, spousal support, division of real property. With the mediation process, the parties have control over what’s going to happen with their matter, but when the matter goes before a judge, that judge will make a call on everything, even though there’s no guarantee that judge will be fully versed regarding what is going on between the parties or understand the nature and extent of the dispute between the parties.
It’s better to try to resolve things rather than stand in front of a judge and have them decide who the child will live with a majority of the time, or whether it will be a 50-50 time share! Who better to make decisions with regard to where the kids will live than the parents? It’s the last thing you want a complete stranger deciding.
When is Mediation Better Than Going to Court and Vice Versa?
Mediation is better when the parties are calm and more adult-like in trying to come to a fair resolution. Sometimes, there are very contentious cases in which the two parties can be locked in a room for three days and never agree on anything. Those are the types of cases where you file your paperwork and let the judge decide or you try to resolve it out in the hallway with the other attorney.
Typically, the judges require the parties to meet and confer before the hearing, but when the parties can’t agree on anything and all the issues in the dissolution process are highly contentious, that’s when you just put it on and let the judge decide. The judge will take testimony, and ask questions and allow the parties’ attorneys to put on their respective cases, but the judge will make a decision. Some people simply can’t resolve a case without judicial intervention.
Should a Person Plan Ahead When Contemplating A Divorce?
That’s a good idea; often, individuals come in and the parties haven’t been intimate for six or eight months or a year or longer and they’ve talked through some of the issues regarding divorce, such as who will get the house or will we sell it and other questions, but they don’t know how to proceed. You can’t really answer that question because there are so many different variables involved; every case turns on its own set of facts.
By the time they get to hiring attorneys, many people have already sold the house and they’re just trying to work on a test in visitation plan. You’re still trying to divide up some of the marital assets, retirement plans, savings accounts, those types of things. It’s always a good idea to try to plan ahead and try to figure out what is the best course of conduct for each person in the divorce.
Does the Mother Automatically Get Full Custody?
In California, the only time the mother will automatically get full custody is if the father is incarcerated; other than that, both parents are entitled to a 50-50 time share unless one party or the other proves they can’t handle it because of work commitments, time constraints, other issues going on in their life. So, no; the mother does not automatically get full custody unless the other parent is incarcerated.
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