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. The mediator also may assist the parties in decisions to consult third party experts such as tax advisors, financial planner, mental health professionals as coaches to work with the parties during the mediation process and as child specialists where appropriate. In addition, 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. Decisions to use experts and decisions about the frequency of mediation sessions will vary depending upon the parties and the kinds of issues to be resolved. Finally, 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 PRACTICE – For the legal part of the collaborative process, 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. As in mediation, parties adopting collaborative practice may decide they need the help of other professionals. Parties electing a team model will decide on the kinds of help they need as they work through the divorce process. In a true team model, the various professionals working with the parties will keep in contact with each other, to ensure that accurate and complete information is available to all. As with mediation, decisions about the use of experts depend upon the parties and the issues.

TRADITIONAL OR LITIGATION – The classic 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. Here also it is possible that the parties will be able to agree on the use of joint experts as needed. Parties may also elect to have separate experts assisting them. The emphasis is on the expert's analysis of an issue, which will be presented to the court on behalf of one party. Similarly, litigation attorneys although looking for settlement options, will prepare the case for presentation to the court as persuasively as possible on behalf of the client. The fundamental difference between litigation and either mediation or collaborative practice is the presence of a decision maker to whom the parties present their positions.