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?
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 2451. California 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.
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. 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.
[i] Certified Specialist – Family Law, The State Bar of California Board of Legal Specialization.