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, the preparation for the MSC is nearly as stressful and costly as preparing for the trial itself for everyone involved including the attorneys, clients, and other professionals who may be involved.
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. The pained and stressed-out expressions on the faces of the parties and counsel at the MSCs I facilitate say it all.
Better Options for Settling Cases: Early Mediation
There are many options near 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 with a realistic chance of settling successfully. It 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 At Lower Cost
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 takes place whether the case needs the information or not. The adversarial process spurs less and not more cooperation in discovery. As a result, parties can face months or even years of time-consuming, expensive discovery wars.
Why not use a mediator to help “referee” the discovery? Most discovery can be provided informally at much less cost. A mediator can help facilitate the discovery process to specifically target discovery needs. The mediator can help everyone conclude the case with fewer headaches and less stress for the lawyers. This results in a lower cost for the parties.
Successfully Managing the High Conflict Case
There is a common misconception that people cannot mediate high conflict cases. It’s simply not true.
Most high conflict behavior in divorce cases is based on fear and hurt. That’s because Court proceedings tend to exacerbate and actually encourage high conflict responses. So, engaging a good mediator early in the process reduces conflict by managing the fight-or-flight response.
Rather than encouraging conflict including ugly public fights in court, consider short-circuiting conflict with a mediator experienced in high conflict. If the parties learn early how to interact productively, it then makes the rest of the case go more smoothly, and often more quickly.
Use Early Intervention Through Mediation to Resolve Interim Issues
The terribly backlogged family courts sometimes take months to hear even the most routine (and sometimes pressing) interim motions. Working with you and your clients in mediation, I can help you 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. Instead of reacting to ongoing problems, people can focus on concluding the case.
Consider a Court-Ordered Family Centered Case Resolution Plan Per Family Code Section 2451
One little-known Family Code provisions involves the use of Alternate Dispute Resolution (ADR) as part of a court-ordered family centered case resolution plan. It is described in Family Code Section 2451. Additionally, California Rule of Court 5.83 describes how to implement the plan. Parties can appoint a case manager as part of the plan. They 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.”
This Family Code section 2451 procedure has been effective in my experience. It can do a lot to reduce costs, and keep the case moving quickly towards settlement.
Because 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. Call on Weber Dispute Resolution to help. We have the training, skills, and experience to get your family law case past stuck. Our approach serves to support existing relationships with legal counsel, and will preserve the family’s wealth by reducing family conflict. Peace of mind is priceless.