Ways to Proceed

MEDIATION – Both parties employ one attorney-mediator to help them through the divorce process. The mediator must remain neutral, so he or she may not represent either party and may not offer either party any advice as to his or her best interest. The mediator meets with both parties and assists them in reaching agreement. The mediator may assist also with procedural steps, and may offer information as to the law. The mediator does not propose any solutions and does not make any decisions. The objective is to give the parties the setting in which to reach agreements that suit those two parties. Each party is strongly encouraged to employ a reviewing attorney who can offer advice and who will review any proposed agreement, but who typically does not attend mediation sessions. If the parties are successful in reaching agreements, those agreements will be incorporated into a Judgment by the Family Court without any requirement of a court appearance.

COLLABORATIVE LAW – Both parties employ attorneys. The contract with each attorney, however, specifies that the attorney will not and may not take the matter to court. Typically, the parties and attorneys then use four-way meetings to discuss the issues in the case and work toward resolution. Each attorney is an advocate for his or her client, but is committed to working toward solutions for the benefit of both parties, without resorting to a decision maker such as a judge or arbitrator. As with mediation, above, agreements are incorporated into a Family Court Judgment without any court appearance.

TRADITIONAL OR LITIGATION – The customary method in which both parties employ attorneys, whose job is to prepare and take the case to court for decisions. Even “litigated” cases usually settle before going to trial. Indeed, the procedures in Santa Clara County Family Court require several steps designed to promote settlement, before a trial can be set. Nonetheless, this model often will require at least a preliminary hearing in court. The attorney’s job includes both efforts to find solutions that permit settlement and preparations for presenting issues to the court.