Incurring fees with an Orange County divorce lawyer is not the way most logical people would choose to spend their hard-earned savings if they had a realistic choice. If a divorce is truly a simple matter, the importance of a divorce lawyer is less significant than in a more complex matter. The problem is that even less complex divorces often have complex and nuanced issues that often are not recognized by the parties themselves.

There are many situations where parties elect to mediate their Orange County divorce in an effort to avoid spending money on divorce lawyers, a logical objective. In certain situations, this is not only wise, but necessary due to a lack of funds. However, where the parties do have funds available for legal representation, pursuing divorce mediation (without the assistance of a divorce lawyer) may ultimately be a very expensive mistake – “penny wise and pound foolish” as the saying goes.You should also consider the net economic cost of saving money by not paying an Orange County divorce attorney, and ending up with a losing settlement that costs up to three, five or ten times as much as you saved by not paying a lawyer.

A critical part of every divorce settlement is the negotiation of its terms. Often times, parties going through a divorce believe that the divorce laws will dictate the results of the settlement. The laws provide the general structure of a settlement, but the laws are often very nuanced and the law must be applied correctly to the facts in each case. It is a mistake to believe that the involvement of a divorce mediator minimizes the importance of negotiation. The parties negotiate with each other, face to face, in the mediation process. Often times the divorce mediator will intentionally or inadvertently be negotiating in favor of, or against, one party in order to achieve a settlement. It is important to understand the mediator’s mentality. The mediator wants to achieve a settlement and counts settlements as wins. This is not the same as saying that a mediator wants to achieve a fair settlement. A party not experienced or trained in negotiation will generally be at a significant disadvantage.How can a party negotiate a reasonable or fair divorce settlement if they do not know the divorce laws and nuances? How can a party know which issues to push and which issues to concede? When negotiators are hired in business, politics, sports, or any other field, the person hired is an expert in that particular field. You would not hire a sports agent to negotiate the sale of a business. Likewise, it would not be the wisest course of action to attempt to negotiate a divorce settlement if you lack insight from an experienced Orange County divorce lawyer.

One should consider the consequences and fall out of a divorce mediation that does not result in a successful and fair settlement.If mediation is not successful the parties will have incurred substantial unnecessary attorneys fees and there will have been a delay in resolving the divorce. Unsuccessful mediations often further polarize the parties which may increase the odds of ending up in expensive litigation.

If the parties are not good candidates for mediation they should not opt for that process.

Over the years, we have had many cases where clients have consulted with us after a failed divorce mediation. In some matters we learn that our new client walked away from an amazingly advantageous settlement due to a lack of understanding as to why the terms were so favorable to his or her position. We have had other cases, where a client entered into a disastrous settlement of their Orange County divorce that they were attempting to either set aside or modify.

Divorce mediation may be used as a very successful delay tactic by a strategic spouse. A delay in the resolution of a case can be a significant benefit to one side or the other. During a delay, a party may make financial decisions or position assets that may impact the ultimate divorce settlement. The timing of a divorce may be one of the most important issues. The use of divorce mediation to delay the resolution of an Orange County divorce can be a very successful tactic. For example: if the parties own a business, the delaying of the settlement or trial, will most likely, change the time frame over which the financial performance of the business will be measured. A different time frame will often result in a different valuation.

In order for a mediation of an Orange County divorce to be successful, the parties must both be good “candidates” for the mediation process. Being a good “candidate” generally means that both parties:

1. ARE WILLING TO ALLOW THE OTHER PERSON TO RECEIVE 51% OF THE ASSETS;
2. Do not have a psychological need to WIN;
3. Trust each other. Divorce mediation is not a process that is designed to verify facts, investigate financial issues and question suspect expenditures. If there is a lack of trust, divorce mediation is not the correct model;
4. Are not hostile personality types. If one party is essentially a bully, mediation will not be “successful,” unless the other party simply gives in to the bully. In that case, the divorce mediation is “successful” because it resolved the issues, not because a fair settlement was agreed to;
5. Are both ready to end the relationship. If both people are not ready to move on with life, divorce mediation will be a waste of time and money. A divorce mediator does not have the power to force a settlement. To reach an agreement both people must have a desire to reach a fair resolution on all issues;
6. Are both ready to resolve the issues. If either party is angry with the other or has a need to delay the resolution, divorce mediation will most likely not be successful. Anger on the part of a spouse makes mediation, essentially a non-starter;
7. Have not been victims of domestic violence or abuse in the relationship;
8. Have essentially equal personal power in the relationship. Divorce mediation involves negotiation. Generally, the parties do not have lawyers physically present in the divorce mediation sessions and thus the party with more power and better negotiating skills prevails.
9. Have essentially equal access to and understanding of the finances. Except in the area of child custody, a divorce is a financial transaction. The party with less knowledge and less experience with financial issues is at a severe disadvantage in divorce mediation. Failing to understand the financial aspects of a divorce may result in the receipt of less child support and less spousal support than should have been agreed to and it may result in an unequal property settlement.
10. Define “fair” in a similar way. Many people proclaim a desire to want a fair deal but differ on what they feel is fair. In fact, the definitions can be and usually are extraordinarily different in the context of a divorce.