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Sometimes going to court is the best option

For many people, divorce conjures up images of heated arguments, accusations and courtroom battles that leave a couple bitter enemies. However, this is seldom the case, and many couples settle their divorces in an amicable -- if not friendly -- manner. Since the 1980's, out-of-court dispute resolutions processes such as mediation have been available to divorcing families. During mediation, you and your spouse meet periodically with a neutral mediator who guides you toward the resolutions to your conflicts.  Typically, each party also has an attorney whom they can consult during mediation about any proposed settlement.

In many cases, mediated divorces leave a couple with a settlement that is more satisfying than a court-ordered agreement. Perhaps more importantly to some couples, mediation fosters a spirit of cooperation and compromise that may be important in post-divorce years. Nevertheless, mediation is not for everyone, and you may have reasons for rejecting the concept in favor of litigation.

When is mediation the wrong choice?

You are not alone if you feel mediation is an inappropriate way to end your marriage, especially if your breakup was a bitter one and you have not reached the point where you feel able (or inclined) to work contructively with your ex. Perhaps you and your spouse tried to take your divorce to the mediator's table, but you find it difficult to be in the same room with your ex. In some cases, it may be better for a couple to resolve their issues thorugh their lawyers and, if necessary, in the courtroom, such as:

  • You and your spouse have a very different perception of what is financially appropriate and necessary for you and your children.
  • You experience strong emotional reactions to what your spouse says or does that make it difficult for you to think clearly and to make good decisions. 
  • You know that your spouse will not cooperate and will make the divorce process as difficult as possible. 
  • Your spouse refuses to make or follow agreements and you need to finish the divorce process. 

Mediation and Collaborative divorce usually requires parties to be in a room together, with their attorneys and other professionals, and to engage in constructive dialogue. On the other hand, if sitting with your spouse trying to work out your differences was painful during your marriage, trying the same approach in your divorce may have no attraction for you.  In such cases, your attorney can often negotiate a settlement with your ex's attorney that is acceptable to you.  If agreement can't be reached on one or more issues, then these issues may be presented to a judge or arbitrator for decision. 

Assistance is available

Of course, if your marriage was violent, mediation and Collaborative divorce is not the best option for you. Your abusive spouse is not likely to demonstrate the empathy required for a successful consensual dispute resolution process. Additionally, you may find it impossible to negotiate with someone who used violence to control you. In such cases, the intervention of the California courts may be in your best interests.

Fortunately for struggling couples, there are numerous options available for dissolving a marriage. Mediation, collaboration, negotiation and litigation each offer advantages that may fit your situation. Seeking the advice of a legal professional may help you decide which process works best for you.

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NACHLIS & FINK

Nachlis & Fink
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San Francisco, CA 94102

Phone: 415-399-8380
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