If you've made the difficult decision to divorce, there are several ways you can proceed:
Which of these approaches is best depends on your specific needs and circumstances. Please call me if you would like to discuss the benefits and limitations of these approaches and what factors to consider in deciding which approach is the best fit for you.
Mediation
In the mediation process, both spouses employ one mediator to help them through the divorce, with the goal of creating a durable agreement that is filed in Family Court. The mediator must remain neutral throughout the whole process – he or she may not represent either spouse, and may not offer either spouse any advice as to his or her best interest.
Throughout the mediation process, the mediator meets with both spouses jointly and assists them in reaching an agreement. The mediator may assist with procedural steps, and may also offer legal information. The mediator does not propose any solutions and does not make any decisions. The objective is to give the spouses a safe setting in which to reach an agreement that suits them. Each spouse is encouraged to employ a reviewing (consulting) attorney who can offer advice and who will review any proposed agreement, but who typically does not attend mediation sessions.
If the spouses successfully reach an agreement, the Family Court typically incorporates that agreement into a final judgment without requiring a court appearance.
Collaborative Divorce
In the collaborative divorce process, each spouse employs his or her own attorney to help him/her through the divorce, with the goal of creating a durable agreement that is filed in Family Court. Each attorney represents his or her client throughout the process, and offers advice as to the client's best interest. The contract with each attorney, however, specifies that the attorney may not and will not take the matter to court if the spouses cannot come to an agreement.
Throughout the collaborative process, the spouses and attorneys typically 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 spouses, without resorting to a decision-maker such as a judge or arbitrator. The collaborative process is a transparent process in which professionals (attorneys, financial consultants, etc.) share relevant information with each other. As with mediation, agreements are usually incorporated into a Family Court judgment without any court appearance.
The collaborative process frequently uses a team model that incorporates not only attorneys, but also coaches, financial professionals, and child specialists, among others, to help the spouses understand each other and the issues involved, and to reach an agreement that is best for the entire family.
Traditional Court Proceedings or Litigation
In the traditional, court-focused process, each spouse retains his or her own attorney, whose job is to prepare and take the case to court for a judge to decide. Most “litigated” cases settle before going to trial; in fact Santa Clara County Family Court requires the parties to go through several steps designed to promote settlement before a trial date can even be set. Nonetheless, this approach often requires at minimum a preliminary hearing in court. The attorney’s job includes both efforts to find solutions that permit settlement, and preparations for presenting the case to the court.