Questions about Mediation

What is mediation? Mediation is a voluntary process where a neutral third party, called a mediator, helps disputing parties communicate and negotiate to reach a mutually acceptable agreement. It is often used as an alternative to going to court.

How does mediation differ from going to court? In mediation, the parties have control over the outcome and work collaboratively to reach a solution, whereas in court, a judge makes the final decision. Mediation is typically less adversarial, less expensive, and faster than litigation.

What types of disputes can be resolved through mediation? Mediation can be used for various types of disputes, including family law matters (such as divorce, child custody, and spousal support), workplace conflicts, business disputes, and more.

What should I expect during the mediation process? During mediation, the mediator will facilitate discussions between the parties, help identify the issues, and guide them toward mutually agreeable solutions. The process involves open communication, negotiation, and compromise.

Do I need a lawyer during mediation? While it is not required to have a lawyer during mediation, it can be beneficial to seek legal advice to understand your rights and options. You may choose to consult with a lawyer before or during the mediation process.

How long does mediation typically take? The duration of mediation varies depending on the complexity of the issues and the willingness of the parties to reach an agreement. Some mediations may be resolved in a few sessions, while others may take longer.

Balancing Legal and Emotional Needs

How are legal issues addressed in mediation? The mediator ensures that both parties are fully informed about their legal rights and options. This includes explaining relevant laws and legal principles that apply to the case, while also respecting the parties' autonomy to make their own decisions.

What if emotions run high during mediation? It is natural for emotions to be a part of the mediation process. The mediator is trained to handle emotional dynamics and will help create a safe and respectful environment for both parties to express their feelings and concerns.

Can we discuss personal and emotional issues in mediation? Yes, personal and emotional issues often play a significant role in disputes. Addressing these issues can help both parties feel heard and understood, leading to more meaningful and lasting resolutions.

Creative Problem-Solving

How can mediation help in finding creative solutions? Mediation offers the flexibility to explore creative solutions that work best for your unique situation. Unlike court, where decisions are made by a judge, mediation allows you to craft personalized agreements.

What if we can't agree on a solution? If the parties cannot reach an agreement, they still have the option to pursue other forms of dispute resolution, such as arbitration or litigation. However, many disputes are successfully resolved through mediation.

Effective Communication in Mediation

How does the mediator ensure effective communication? The mediator uses techniques such as summarization and reflective listening to ensure that both parties understand each other. This helps prevent miscommunications and fosters a cooperative atmosphere.

Can I speak privately with the mediator? Yes, you can request a private session (called a caucus) with the mediator at any time during the mediation process. This allows you to discuss concerns or explore options confidentially.

Costs and Confidentiality

How much does mediation cost? The cost of mediation varies depending on the mediator’s fees and the complexity of the case. Mediation is generally more cost-effective than going to court. Some mediators offer sliding scale fees based on income.

Is mediation confidential? Yes, mediation is a confidential process. Communications during mediation cannot be used as evidence in court, and the mediator cannot be called as a witness. This encourages open and honest dialogue.

Mediation Outcomes

What happens if we reach an agreement in mediation? If an agreement is reached, the mediator will help draft a written agreement that outlines the terms. This agreement can be reviewed by lawyers and, if necessary, submitted to the court for approval.

Prenup Questions Answered

1. In simple terms, what exactly is a prenup? A prenuptial agreement, or prenup, is a legal contract that a couple enters into before getting married. It outlines how their assets and debts will be divided and specifies financial responsibilities during the marriage, such as who pays for what. A prenup can also address scenarios in the event of a divorce, including support payments from a higher earner to a lower earner. It considers life changes, such as unemployment or disability, and how these would be managed financially. Additionally, it can include provisions related to inheritances and properties acquired before or during the marriage, ensuring clarity and fairness.

2. Who usually needs a prenup? Prenups are particularly beneficial for individuals with significant assets, business owners, those with children from previous relationships, or anyone who wants to clarify financial expectations and responsibilities before marriage. They are also useful for people expecting significant changes in financial circumstances, such as inheritance or career changes.

3. What can and can't be protected by a prenup? For instance, is it possible to protect a house acquired before marriage? In California, a prenup can define separate property and community property during marriage, divorce, and death. It can specify the choice of law that will apply if you divorce and address how funds will be used during the marriage, such as payments from community funds towards someone's separate property residence. You can protect a house acquired before marriage as separate property. However, it cannot include anything illegal or unenforceable, such as decisions regarding child custody or support.

4. What are the pros and cons of a prenup (especially for women)? Pros: Protects assets and clarifies financial interests, decreases ambiguity in financial expectations and responsibilities, and can prevent lengthy and costly divorce proceedings. Cons: May create tension or discomfort when discussed and could be seen as unromantic or suggesting a lack of trust.

5. Do couples need a prenup if they have a Trust? While a Trust can provide some financial protections, it does not replace the need for a prenup. A prenup addresses the division of all assets and debts, including those not covered by the Trust, and can provide additional clarity and protection.

6. What should a woman ask for in a prenup (especially if she is marrying a man)? A woman should consider including protection of premarital assets, clear terms for spousal support, division of marital assets, responsibilities for debts, and provisions for significant life events, such as children and relocation. She should also consider addressing the use of community funds and the treatment of any inheritances.

7. What can't be asked/included in a prenup? For instance, infidelity clauses are accepted in the U.S? Prenups cannot include terms related to child custody or support, as these are determined by the court based on the child's best interests. Infidelity clauses are generally not enforceable in the U.S., as they are considered against public policy.

8. How to make a prenup? Do you need to hire a lawyer and/or pay any specific fees? To create a valid prenup in California, both parties should hire their own lawyers to ensure it meets all legal requirements and is enforceable. Each party should have their own attorney to avoid conflicts of interest. Legal fees will vary depending on the complexity of the agreement and the attorneys' rates.

9. Does a prenup need to be notarized? While there is no legal requirement in California for notarization, it is generally recommended to notarize the prenup to confirm the authenticity of the signatures and ensure it is legally binding.

10. If the couple divorces, are the terms of the prenup automatically executed, or are there situations where the law “overrules” the prenup? Generally, the terms of a prenup are executed as written. However, a court can overrule a prenup if it is found to be unconscionable, signed under duress, or includes illegal or unenforceable provisions. In California, the court has recently focused on the voluntariness of a prenup and has found that some limits on spousal support are unconscionable.

11. In your experience dealing with clients, do couples lose trust in each other when a prenup is suggested? While discussing a prenup can be uncomfortable and may lead to initial tension, it often leads to clearer communication and mutual understanding of financial expectations. Many couples find that it strengthens their relationship by addressing potential issues upfront.

Prenup Questions

What can't be asked/included in a prenup? For instance, infidelity clauses are accepted in the U.S.?

Prenups cannot include terms related to child custody or child support. Infidelity clauses or clauses that address substance use or gambling are generally not enforceable, as they are considered against public policy.

How to make a prenup? Do you need to hire a lawyer and/or pay any specific fees?

To create a valid prenup in California, you will both need to hire a lawyer to ensure it meets all legal requirements and is enforceable. Each party should have their own attorney to avoid conflicts of interest.

Does a prenup need to be notarized?

No, there is no legal requirement in California for notarization, but we generally recommend it.

If the couple divorce, are the terms of the prenup automatically executed, or are there situations where the law “overrules” the prenup?

Generally, the terms of a prenup are executed as written. However, a court can overrule a prenup if it is found to be unconscionable, signed under duress, or if it includes illegal or unenforceable provisions. In California, the court has recently been focused on the voluntariness of a prenup and has found that some limits on spousal support are unconscionable.

What can and can't be protected by a prenup?

In California, a prenup can define what is considered separate property and what is community property (marital property) during marriage, in the event of a divorce, and upon death. It can specify the choice of law that will apply if you divorce and address how funds will be used during the marriage, such as payments from community funds towards someone's separate property residence. You can also place limits on spousal support within a prenup. Additionally, a prenup can outline how assets will be distributed upon death, if you wish to change the default legal provisions. 

A prenup cannot include anything illegal or unenforceable, such as decisions regarding child custody, child support, or the impact of infidelity.

Who usually needs a prenup?

Everyone. But most of the prenups I work on are for people who are inheriting significant assets, own businesses, or are in their second marriage. One person having significant debt is another reason that parties choose to have a prenup.

Even if you are marrying someone more wealthy than yourself, a prenup can offer significant benefits by clearly defining financial expectations and responsibilities. For example, a prenup can specify that a house acquired before marriage remains separate property, but any increase in its value during the marriage is considered marital or community property. This is different from the law - in a generous way - but can honor the parties commitment to the wealth created during marriage. 

A prenup helps protect both parties by outlining the division of assets and debts, ensuring financial matters are handled fairly and transparently, such as distinguishing between separate and community property. An agreement can prevent misunderstandings and legal disputes, providing peace of mind and stability for both partners throughout the marriage and in the event of a divorce​​.