San Diego Family Mediation
Law and Mediation Office of Julie Wolff offers Family Mediation in San Diego California. Our primary function is to educate, inform and support those who work in the family mediation field. To that end, we host monthly continuing education events, membership networking events and provide other forms of community and assistance to mediators in the San Diego area. Additionally we are committed to the promotion of mediation as a standard dispute resolution process for all classes of family conflicts.
Whether a conflict is rooted in divorce and separation, pre-nuptial or post-nuptial conflict, shared ownership disputes within families, family business disputes, elder care challenges, the break up of same-sex couples, couples mediation or any other form of family dispute, we strongly believe mediation should be considered as part of the solution.
What is Mediation?
MEDIATION is a confidential, cost-effective process that helps people even in the highest conflict work cooperatively to create mutually satisfactory agreements that address the needs and concerns of all family members.
What is Mediation?
Mediation is a client-centered voluntary alternative to the traditional adversarial or litigation method of resolving disputes. It can be used in all types of disputes including Matrimonial and Family Law disputes.
Mediation is defined as a process in which conflicted parties make decisions together based on their understanding of their own views, their partner’s views, and the various realities that they each face. Within the mediation model, the mediator, acting in a non-coercive manner and while maintaining neutrality (a lawyer mediator cannot represent one party), facilitates communication between the parties to explore their options in a non-adversarial manner. The mediator helps both parties identify issues, clarify each of their various perceptions and explore potential options toward resolving the conflict. Since neither party is focused solely on winning but rather finding reasonable solutions, both parties gain more than they thought. The process is meant to create a ‘win-win” situation.
Mediation does not preclude the use of lawyers. It is recommended that any mediated agreement should be reviewed by each individual’s lawyer. One’s lawyer will provide security that all issues have been addressed and that legal rights and obligations have been explained. Having a lawyer to consult can speed up the mediation process.
The mediation process is efficient. By working together, parties are less inclined to engage in disagreements over smaller issues. Financial transparency eliminates costly disputes over the sharing of information. The parties and mediator work together to create options with the goal of making the most of available resources. Working together reduces animosity and protects children from parental conflict.
The cost of mediation is determined by the complexity of issues and the willingness of the participants to work together. The number of issues, the contentiousness of the parties, and the willingness of the parties to work together in the mediation sessions and in between sessions all are factors which will impact the cost of the process.
Benefits of Mediating
Divorce and separation can be an emotionally and legally overwhelming experiences. Litigation involves hiring lawyers and going to court where lawyers will negotiate or argue positions and a Judge will decide the outcome of the case, with little thought given to the needs and desires of the family. The court process is antagonistic in nature; an “us” vs. “them”` process often leaving couples financially strapped, more hurt, angrier and less able to co-parent together.
Mediation, in contrast, focuses on the couple and their children, helps to reduce conflict, is less stressful, is more cost effective, and allows parties to control the outcome by creating an agreement tailored to the unique needs of the family.
- Cost effective and efficient: The parties will hire one agreed upon Mediator. In mediation, the parties determine the length of the mediation sessions, when the sessions will take place, and the issues to be discussed and resolved at each session. Litigation requires taking time off from work or away from family obligations according to the availability of the attorneys and the Court, and making numerous trips to the Courthouse to address the legal case.
- A Mediated Agreement is unique: Mediation is a non-adversarial conflict resolution process that enables couples to discuss disagreements and focus on problem solving. Mediators are trained as neutral facilitators who will assist the parties to make decisions that are personal to the family’s needs rather than a “one size fits all” approach that might result after litigation.
- Mediation is Child focused: While parties will no longer be Husband and Wife after a divorce, they will always be parents to their children. Working together to reach a resolution will address the children’s needs and improve communication by shifting from adversarial to problem-solving resulting in more effective co-parenting in the future. In litigation, children can be dragged into conflict. The more adversarial the divorce, the less emotionally and physically available parents are to their children at a time when they need parents the most. An attorney may be appointed for the children. The family may be ordered to undergo a forensic evaluation. At the end of litigation, parents and children are left emotionally fragile, angry and faced with complying with an agreement or a decision rendered by the Court that may not reflect the family’s needs.
How to Launch a Mediation
Choose the right mediator. Before researching potential mediators, make a list of key concerns and questions. All mediators should have a solid understanding of the legal, financial and emotional aspects of separation and divorce. Many mediators also have expertise in specific areas such as: children with special needs and personal finance.
Questions to ask. When consulting a mediator, ask about:
- The mediator’s background and training.
- What characterizes the mediator’s style?
- What types of decisions will we make in mediation?
- How will our decisions be documented? Will we receive a legal agreement when mediation is completed?
- Does the mediator recommend or require working with consulting or review attorneys?
- Does the mediator work with accountants, pension experts, child specialists or other professionals?
- What is the process for working with the mediator including fees and a typical timeline?
Get organized financially. Much of mediation is about financial matters – income, expenses, assets and liabilities. Work with your partner to make a list of assets and debts and begin gathering copies of all financial records such as the most recent federal and state tax returns, W-2 and 1099 forms, pay stubs, statements for bank accounts and investment accounts, credit cards statements, statements for loans and mortgages, insurance policies, and retirement accounts. Create a household budget to reflect current living expenses. A complete financial picture ensures a realistic assessment of any and all options.
Focus on the big picture. Think about what truly matters and remain open minded. Consider the values that are most important to you and focus on long-term goals.
Child Support and Mediation
Mediation is an ideal process for making parenting and child support decisions without court involvement. It allows the focus to remain on the family’s financial realities and parenting values. Courts, on the other hand, will likely apply the child support guidelines without considering fully a family’s financial realities.
In Califonia State, both parents are required to financially support their children until they are 21 years old or are emancipated. This financial support is commonly referred to as child support. The premise behind child support is that children benefit when both parents are responsible for the financial support of their children, and that the children’s standard of living should not be disrupted by the changes in their parents’ relationship.
The Child Support Standards Act, also referred to as the CSSA, governs child support in San Diego. The CSSA guidelines for child support have two main components. There is “basic support” which is designed to cover expenses such as providing a home, food, clothing, and necessary living expenses for the children and “statutory add-ons” such as health insurance premiums, unreimbursed medical expenses, childcare expenses necessary for the custodial parent to work or attend school, and certain educational expenses. Child support is not taxable to the recipient.
The CSSA guidelines assume that one parent will be designated as the “custodial” parent and will receive child support from the other parent. The custodial parent is the parent who cares for the children more than Half of the time. When parents share the care of their children equally, child support still must be addressed. Under the CSSA the higher earning parent would pay basic child support to the other parent.
The amount of basic child support is calculated as a percentage of the parents’ “total combined income.” Income is defined as money reportable on a federal tax return including employment wages, investment income, Social Security, and unemployment compensation. Expenses deducted from income include spousal support, child support paid for other children, California Tax, Medicaid and Social Security (FICA) tax, and some unreimbursed business expenses. The net amount is then used to calculate child support and the pro rata amount each parent will contribute toward statutory add-on expenses.
The CSSA guideline formula applies to the parents’ combined annual income to a cap, which is currently set at $150,000. Often a court will apply the CSSA guidelines formula to parental income over the CSSA cap.
The mediation process allows the parents to determine for themselves how much, if any, of their income over the CSSA cap will be used to determine basic child support, and how to address child support when the parenting plan is close to, if not fully equal between the parents especially given the financial realities of having two households to support. Deviation from the guidelines requires specific reasons.
The amount of combined family income designated for child support is based on the number of children: 17% for one child; 25% for two children; 29% for three children; 31% for four children and not less than 35% for five or more children.
While basic child support is meant to cover children’s basic living expenses, many child-related expenses are not covered by the guidelines. For example, the costs of optional tutoring, sports, and other extra-curricular activities are not included in CSSA. The CSSA does not explicitly state how these expenses are to be covered and many parents will share these expenses on a pro-rata basis. In the mediation process, parents have the flexibility to decide how they will cover expenses for these discretionary activities.
Maintenance and Mediation
San Diego State Domestic Relations Law provides that married spouses may ask a court to order financial support (maintenance) payable from one spouse to the other by filing the appropriate paperwork in Supreme or Family Court. Only married parties are entitled to ask the court for an order of maintenance. A court may order temporary spousal support while the case is pending (“temporary” maintenance) or after the divorce is finished (“Post-Judgment” maintenance).
A major purpose of maintenance is to maintain the parties’ pre-separation standard of living based on the reasonable needs of the party seeking maintenance and the ability of the other party to pay so as to provide time for the spouse receiving the support to become self-sufficient.
A judge can consider a number of factors in deciding whether to order maintenance. These factors include the age and health of the parties; the present or future earning capacity of the parties; the need of one party to incur education or training expenses; the termination of a child support award while temporary maintenance is being paid; the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration; the length of time that the parties lived together before the marriage or if they were separated before the divorce; if a party was prevented from maximizing earning capacity or obtaining meaningful employment; the availability and cost of medical insurance for the parties; the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibited a party’s earning capacity; the tax consequences to each party; the parties’ standard of living during the marriage; the reduced or lost earning capacity of the payee who delayed education, training, employment or career opportunities during the marriage; the equitable distribution of marital property including income from the assets; the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and any other just and proper factor.
The guideline amount of monthly maintenance is based on calculations using both parties’ incomes, with an income cap for the payor spouse (currently $192,000). A court has discretion to order maintenance using the payor’s income above the cap. Please consult with a tax advisor to ensure that the appropriate tax implications of a maintenance payment have been considered.
The duration of the payment of maintenance under California law is based on a percentage of time depending on the length of the marriage, resulting in the termination of the payment of maintenance on a specific date The law sets frameworks for this determination but it is not a mandatory calculation. Maintenance will also terminate upon the remarriage of the recipient or the death of the payor.
Within the mediation process, parties can explore whether the statutory calculation for the amount of maintenance is best for their specific circumstances. Mediation also provides an opportunity for the parties to discuss and consider many options about the payment of maintenance, empowering the parties to craft an agreement that meets their present and future needs and avoids an uncertain result.
Custody, Parenting, and Mediation
In almost all cases it is beneficial for children to have a meaningful, ongoing relationship with both parents. The children’s needs are the primary focus when parents create the parenting schedule and make decisions about their children.
“Physical Custody” or the Parenting Schedule
The court system designates the “custodial parent” as the parent who cares for the children 51% or more of the time. The other parent is the “non-custodial parent.” While the same legal concept applies in the mediation process, mediators and their clients find it far more helpful to discuss “parenting time” or the “schedule”. Some parents will share time equally if doing so is desired, practical and realistic and will refer to themselves as “co-custodial” parents.
There is no set formula for parenting time. The focus remains on the children’s and parents’ schedules when discussing how to share time that is right for an individual family. In mediation, parents will discuss various schedules. Factors such as each parent’s work hours, the children’s schedules, each individual child’s needs, and the distance the parents live from one another all contribute to creating a schedule. In mediation, parents have the opportunity to include language revising the schedule for each or all of their children as the children mature and their needs change.
If parents have a hard time agreeing on the schedule, they can include the participation of a child specialist, a specially trained therapist to advise the parents on each child’s unique developmental needs and who can help the parents constructively communicate about the schedule and make agreements in the mediation process.
“Legal Custody” or Decision Making
“Legal custody” refers to decision making about major decisions affecting the child, such as education, medical matters and religion. One parent may be the physical custodian and both parents can share “joint” legal custody. In some cases, while one parent may have final decision making authority, that parent can be required to consult and discuss these issues with the other parent. In other cases, parents will allocate some decisions to one parent and other decisions to the other parent.
If parents have difficulty communicating with each other and reaching an agreement on a major decision affecting their child, they may include language in their mediated agreement to include the involvement of another professional, such as a child specialist or a parenting coordinator. These professionals empower parents to resolve disputes outside of the court process in the best interest of their children.
Presumptive Alternate Dispute Resolution (PADR)
Presumptive Alternate Dispute Resolution
The California State Court System has implemented a statewide initiative to refer court filed matrimonial actions to mediation as part of the Presumptive Alternate Dispute Resolution (PADR) process for all civil matters.
Most often at the Preliminary Conference (the first time the parties are “in court”), but at any time during the litigation including right up to trial, judges and other judicial personnel will inquire of the parties and attorneys whether participation in mediation is appropriate to assist the parties in reaching an agreement to resolve any or all pending issues.
If the case is deemed suitable for mediation, including but not limited to a screening for domestic violence, the attorneys will select a mediator, or the court will assign a mediator from the approved court roster. All mediators on the roster have completed an in-depth application process and review of credentials. The mediators generously offer the first ninety minutes of mediation free of charge to the parties and will provide hourly fee information for additional sessions if the parties wish to continue in the mediation process.
The mediator may schedule a pre-mediation call with the attorneys and may request that certain documents be provided prior to the first mediation session. Lawyers are present during the first session and the parties have the option to request their lawyers’ participation at subsequent sessions or they may choose to attend without attorneys.
The court appointed mediator’s role is the same as that in private mediation: serving as a neutral and facilitating a discussion with the parties to explore interests and create options for themselves that will lead toward a more satisfying outcome of their case.
Many Clients of Law and Mediation of Julie Wolff have been approved to serve on court rosters throughout San Diego . Currently, most mediations are taking place virtually via Zoom, Microsoft Teams, or similar platforms.
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