Archive for Attorneys

Early intervention: Why mediation early in a family law case can save a fortune in fees and stress.

high conflict divorce litigation, family court scene, divorcing couple at a settlement conference

As a certified family law specialist (CLS-F)[i], I have been involved in divorce mediation and alternate dispute resolution (ADR) for more than 15 years.  I regularly serve as a pro tem settlement judge on the Mandatory Settlement Conference (MSC) Panel with the San Diego County Superior Court.  While I enjoy helping folks through their MSCs, the help is simply too little too late for many people.  Often preparation for the MSC is nearly as stressful and costly as preparing for the trial.  In addition, lawyers need to certify that discovery is complete and prepare elaborate briefs.  Waiting until the very end of a case to attempt mediation does the parties and the professionals a great disservice.  I see this in the pained and stressed-out expressions on parties and counsel at the MSCs I facilitate.

There are many options at the beginning of the case to settle issues, manage discovery concerns and resolve unnecessary conflict.  Even (and especially) high conflict cases can benefit from earlier intervention with a mediator to short circuit the conflict.  Attorneys benefit from early mediation because it helps them settle the cases that can settle.  That frees them up to focus on trials for cases that won’t settle.

Here are some ideas for how you can engage the ADR services of a mediator early in your family law case:

Meet and Confer on Steroids.

Every family law attorney is aware of the requirement for the “meet and confer” conference. Too often it’s simply given lip service by a short phone call to opposing counsel without discussing the issues.  Because lawyers sometimes give less attention to what needs to happen to settle, the case stalls.  Why not have a facilitated meet and confer settlement conference to identify the issues and formulate a plan for a swift conclusion?

Discovery Management.

Often the most expensive part of a case is the discovery, which involves elaborate and arcane procedures to gather as much evidence as possible. Sometimes this is whether the case needs the information or not.  The adversarial process spurs less and not more cooperation in discovery.  This can lead to months or even years of discovery wars.  Why not use a mediator to help “referee” the discovery? Most discovery can be provided informally with much less cost.  A mediator can help facilitate the discovery process to specifically target discovery needs and conclude the case with much less rancor and headache for the lawyers and cost to the parties.

Managing the High Conflict Case.

There is a common misconception that people cannot mediate high conflict cases.  That’s simply not true.  Most high conflict behavior in divorce cases is based on fear and hurt.  So, engaging a good mediator early in the process reduces conflict by managing the fight-or-flight response.  Court tends to exacerbate and actually encourage high conflict pathologies.  Rather than encouraging discord with a fight at court, consider short-circuiting conflict with a mediator experienced in high conflict.  Consequently, if parties learn early how to interact productively, it makes the rest of the case go more smoothly.

Use Early Mediation to Resolve Interim Issues.

The terribly backlogged Family Courts sometimes take months to hear even the most routine (and sometimes pressing) interim motions.   I can usually help as a mediator to resolve interim questions like support and custody in a fraction of the time and cost compared to filing a Request for Order.  Because a mediated settlement conference efficiently resolves interim issues, the parties can relax a little more and focus on concluding the case rather than reacting to interim problems.

Consider a Court-Ordered Family Resolution Plan and Use of ADR  Pursuant to Family Code Section 2451.

One little-known provision of the Family Code involves the use of Alternate Dispute Resolution (ADR) as part of a court-ordered family centered case resolution plan as described in Family Code section 2451California Rule of Court 5.83 describes how the plan can be implemented.  Parties can appoint a case manager as part of the plan and can also apply Code of Civil Procedure section 639 to appoint the case manager as a discovery referee.  Further, Family Code section 2451(a)(3) gives protection to attorneys who follow any discovery plans adopted as part of a court-ordered family resolution plan as follows:

“Limitations on discovery, including temporary suspension pending exploration of settlement. There is a rebuttable presumption that an attorney who carries out discovery as provided in a family centered case resolution plan has fulfilled his or her duty of care to the client as to the existence of community property.”

I have used this procedure to great effect.  It can do a lot to reduce costs and keep the case moving quickly towards settlement.

 

Let Us Move Your Case Past Stuck.

ADR mediation conflict resolution skillsBecause there are many ADR options beyond an end-of-case settlement conference where a mediator can make a huge difference, the key is to start early.  At Weber Dispute Resolution, we have the training, skills, and experience to get your family law case past stuck.  That’s because our approach serves to support existing relationships with legal counsel and will not waste family wealth by exacerbating family conflict.  Experience first-hand the difference a dolphin lawyer can make.

 

Want to get your case past stuck?
Consider a mediated
Settlement Conference with
Weber Dispute Resolution.
Call us at 858-410-0144
to start settling your case.

 

[i] Certified Specialist – Family Law, The State Bar of California Board of Legal Specialization.

 

Five Tips to Have a Miserable Divorce

miserable divorce

Under the best of circumstances, a divorce can be an awful experience.  But there are some things you can do right now to make sure that you have a completely horrible, miserable divorce.  Here are some tips:

1.  Hire the cheapest attorney.

You get what you pay for and an attorney can be the difference in having a good divorce or a miserable divorce.  So by all means, hire the cheapest attorney in the phone book.

2.  Find a shark to represent you.

Make sure that you find the toughest and meanest attorney you can find.  Make sure she is very expensive.  Look for the largest ad in the phone book and find the picture of the attorney with the angriest face.  This is a sure way to increase the conflict in your divorce and make things completely awful.  A shark attorney will do a good job of running up the clock and the billable hours, but generally won’t care about you at all.  The shark will unnecessarily increase the conflict so that he can increase his billable hours.  What little relationship you have left with your soon to be ex will be out the window and you will have years of anger and hatred to look forward to.  When the case is over, you will probably have to declare bankruptcy because the definition of victory for a shark is that you have $2, your spouse gets $1 and the lawyers get the rest.  Best of all, you will spend your kids’ college funds and probably put your lawyer’s kids through school instead.

3. Whatever you do, don’t get a therapist.

You don’t want a therapist to help you with the emotional turmoil you are experiencing now.  You want to be plagued by depression, anger, guilt, and anxiety.  A therapist can help with all of those things, so to truly have a miserable divorce, you want to avoid any mental health professional.  Try to deal with it yourself and let your emotions blossom into a full blown temporary psychosis.

4. Use your children as pawns.

One important key to having a miserable divorce is to destroy your kids in the process.  Studies have shown that the conflict of divorce does more to harm kids than the divorce itself.  So go out of your way to increase the conflict between you and your ex.  Make sure that the kids are in the middle of the conflict.  Use them as messengers for adult business.  Tell them about how horrible your ex is.  Make sure that you fight for every minute with your kids that you can.  Be sure to have a lot of shouting and swearing when you exchange the kids.  That’s a sure way to make sure that your children grow up to have depression, relationship problems, obsessive-compulsive disorder, eating disorders and drug addictions.  Best of all, your children will grow to resent you, which would truly make for a miserable divorce.

5. Demand justice.

There is no such things as justice in Family Court.  That’s why to have a miserable divorce you should demand it!  It’s a sure way to spend a lot of time, money and energy only to be disappointed.  Don’t compromise unless it meets your perfect definition of justice and fairness.  Because your spouse probably has a different opinion of what “fair” means, this technique is particularly effective at disappointing you.

These are my top five.  Do you have any others?  Comment below and share with me your tips for a miserable divorce.

See Also:

Forgiveness During Divorce: http://weberdisputeresolution.com/forgiveness-during-divorce/

How much does it cost to go to divorce mediation? http://weberdisputeresolution.com/divorce-mediation-cost/

Mediating Your Divorce When the Other Party Is a Bully

San Diego Divorce Mediation when the other party is a bully, Shawn Weber

I will often receive a call from a potential client interested in a San Diego divorce mediation, but who is a little apprehensive because their spouse has had a history of coercion, manipulation and bullying.  The question then arises as to whether mediation is really the appropriate venue to resolve the case.  Many of my peers may disagree with me, but I say that with a good mediator, almost any case can be successfully mediated.  Here are some points to consider for a successful divorce mediation when your spouse is a bully:

Check to make sure that your mediator is well-trained.

Mediating a case where there is a history of coercion or manipulation is advanced work and not for the faint of heart.  You need to make sure that your mediator is experienced and has the background and personality to ensure that the playing field is level.  It may be a good idea to bring up your concerns in a  caucus session so that the mediator is aware.

Make sure you consult with an attorney.

Mediation is actually without risk because the mediator makes no decisions in your case.  She can only help facilitate the discussion.  Nothing becomes binding until you sign the marital settlement agreement.  You would be wise, however, to work with advising counsel throughout the mediation process.  Come to mediation sessions armed with knowledge of your rights and what the law may or may not provide.  Under no circumstances should you ever be pressured to sign any documents without first having had the opportunity to review it with your attorney.  If you continue to feel uncomfortable, you may want your attorney to attend mediation with you.

Consider hiring a divorce coach or a therapist.

You need to bring your best self to the mediation sessions.  To avoid falling into the same old patterns where you may have been manipulated or coerced in the past, it is wise to meet with a mental health professional knowledgable in divorce issues to prepare you for the sessions so that you can avoid getting your buttons pushed.  Divorce coaches can most readily be found by looking up your local Collaborative Practice group.  In San Diego, you can go here: http://www.collaborativefamilylawsandiego.com.

Demand Full Financial Disclosure.

In successful mediation, disclosure is essential.  Make no decisions without having had the opportunity to thoroughly review all material financial information.  A financial disclosure should also include back-up statements and documents.  Like in the cold war, it’s “Trust but Verify.”  You may consider having a financial professional such as a Certified Divorce Financial Analyst (CDFA) review the disclosures to make sure there are no “red flags” deserving additional investigation.

Stand Your Ground.

Bullies often bluster and threaten.  More often than not, the threats are empty.  If you are prepared, you need not be intimidated.  Often times abusive relationship involve a sort of abuse dance.  You don’t have to dance anymore.  You are getting divorced.  You are intelligent.  You are certainly not stupid.  Stand on your own two feet and rely on your support system to be strong.

If there is physical intimate partner violence, think twice.

It is one thing to be a bit of a blowhard and a verbal bully.  It’s entirely different when the situation involved physical violence.  Domestic violence is not to be trifled with.  If that is happening, mediation is very difficult.  However, even in such situations, mediation can be appropriate with safeguards in place.  For instance, you can be in separate rooms at all times or you can demand anger management counseling.  In any case, make sure you have trained professionals who know what they are doing.  If for one moment, you do not feel safe, you can withdraw.  However, as a general rule, physical intimate partner violence is a huge red flag to be avoided.

San Diego Divorce Mediation, San Diego Divorce Mediator, San Diego Divorce Mediation, Solana Beach, Shawn Weber, San Diego Divorce Attorney

Dolphin Lawyering: Why I can be an advocate without being a shark

Beautiful dolphin swimming in the blue water

My History Before Dolphin Lawyering

I have been involved in the divorce industry now for 17 years.  If you would have asked me 20 years ago if I would make my living as a divorce attorney, I would have laughed.  I never thought I would enter into such a world.  It seemed to me at the time that matrimonial law was where the lowest of the low practiced.  Consequently, the idea of profiting off of other people’s troubles seemed somehow distasteful.

But then I started a clerkship with a family law firm and experienced how rewarding helping people through the turmoil of their lives can be.  From there, I became a very effective family law advocate and mediator.

Divorce is not just a legal process; it’s a human experience.

As a human being myself, I gain satisfaction from helping people through what can be a very dark and frightening experience.  I made it my goal in every case to bring humanity to legal situations to clarify the dynamics of each unique client situation in a manner that reveals options for settlement, preserves the long-term interest of the family, and empowers the individual client.  Indeed, people become more knowledgeable on how to resolve issues without harming each other, their children, or others, while experiencing peace.

Attack great white sharkDolphin Lawyering vs. Shark Lawyering

I have learned over the years to be a different kind of attorney from the sharks, who give lawyers a bad name.  I developed a profound ability to get into the world my clients are experiencing and feeling to uncover the necessary clarity in each divorce relationship dynamic.  From there, I use my gifts to bring a sense of calm, resolve and hope that could never be reached with a Shark Lawyer.  I call it, “Dolphin Lawyering”.

As opposed to a shark who smells blood from miles away and mindlessly devours whatever fish crosses its path, a dolphin is smarter about how it goes about its business.  As warm-blooded mammals, dolphins are very intelligent and creative hunters.  They can be deadly if they need to be, but can show compassion to other animals as well.   Stories abound of dolphins defending humans from sharks.

How is this like lawyering you may ask?

Many lawyers operate solely by a lawyer’s instinct to act as a zealous advocate, which actually exacerbates conflict.  They operate with standard operating procedures and cookie-cutter approaches to their cases failing to tailor their approach to the individual families with whom they work. As a result, legal fees escalate needlessly.  Instead of helping, the process damages families and children.  So many divorcing couples begin their divorce process with hopes of remaining friends and effective co-parents for their children.  When a Shark Lawyer gets a hold of a family like that, all that is accomplished is that the attorney is richer, the co-parenting relationship is destroyed and the children suffer.

A Smarter Approach.

The Shark Lawyer will defend her actions by pointing out that she was only being a “zealous advocate”.  But zealous advocacy does not mean a lawyer should be a mindless man-eater.  Good advocacy involves knowing when to fight and when to negotiate in a smart way.

Prior to a case starting, Dolphin Lawyers will spend time pre-planning with the client.  The decision of how to divorce is almost as important as the decision whether to divorce.  The Dolphin Lawyer will spend time with his client discussing all of the options for a dispute resolution process.  While litigation is sometimes a necessary evil, a good advocate will take the time to discuss alternate or consensual dispute resolution models such as mediation or Collaborative Practice.  I always ask, “What specific, tailored approach is going to work for this family?”  In contrast, the shark never asks such a question, simply going by mindless instinct and applying expensive and unnecessary standard operating procedures that may or may not be helpful.  While the Dolphin Lawyer seeks to pour water on the fire, the Shark Lawyer pours gasoline.

The Dolphin Lawyer is No Wimp!

Keep in mind, Dolphin Lawyering is not wimpy.  A Dolphin Lawyer can be very tough in advocating for her client’s interests.  The key is that she can do it with compassion and intelligence.  The Dolphin Lawyer is as knowledgeable as any other attorney.  The difference is that he knows more about how to effectively apply his knowledge to reduce conflict rather than to exacerbate it.

The Dolphin Lawyer is just as zealous an advocate as any Shark Lawyer.  But the Dolphin Lawyer is a more effective advocate because he recognizes that good practice is more than just winning a battle at court.  Rather, strong advocacy is about improving the client’s situation.  While it may make the Shark Lawyer richer, needlessly exacerbating conflict and wasting money on unnecessary legal procedures is hardly effective.

The Dolphin Lawyer does not fear conflict.  She is comfortable working with raw, heightened emotions.  She understands that to lead her clients to peace, she must directly face the pain that led her clients to her door.

Dolphin Lawyer Compassion

A Dolphin Lawyer seeks to understand his client’s pain so that he can help find solutions.  He understands that people are coming through his door at the worst times of their lives.  He doesn’t judge.  Rather, he seeks to be compassionate and understanding.

Below is a chart showing some of the key differences between Shark Lawyering and the Dolphin Lawyering:

Shark Lawyer Dolphin Lawyer
Overly and unnecessarily aggressive. Tough when needed, but understands that you catch more flies with honey than with vinegar.
Avoids emotional discussions. Understands that dealing with emotions is a key element to helping clients through a tough time.
Applies expensive and often unnecessary cookie-cutter standard operating procedures. Tailors the process to the individual client instead of the client to the legal process.
Lacks Compassion or Empathy. Uses compassion and empathy. Seeks to understand the client’s pain, so that he can find solutions.
Puts the Legal process first. Puts the human element first.
Fans the flames. Pours water on the fire.
Uses litigation only. Offers alternate or consensual dispute resolution options such as mediation or Collaborative Practice.
Tells you what you have to do. Asks you what you want to do.

 

 

CA Among Top 7 Worst States for Divorce.

CA Among Top 7 Worst States for Divorce. Good reason for no-court options like mediation or collaborative practice. http://ow.ly/AdyG9