California Premarital Agreements: Understanding Disclosure

California Premarital Agreements: Understanding Disclosure

by | Jul 15, 2024 | Uncategorized

Hey there! Let’s take a deep dive into the world of premarital agreements in California, specifically focusing on the crucial aspect of disclosure. Whether you’re thinking about getting a prenup or just curious about how they work, this is a vital topic to understand.

The Importance of Disclosure in California Premarital Agreements

When it comes to California premarital agreements, one of the most significant issues that can make them unenforceable is incomplete disclosure. However, avoiding this problem is relatively straightforward if you know what to do.

Under California law, specifically Family Code §1615, a California premarital agreement can be challenged if both of the following are true:

  1. There was a failure to disclose.
  2. The agreement was unconscionable (super unfair) when it was made.

The key here is that both conditions must be met for a court to set aside a premarital agreement. This means that even if there was incomplete disclosure, the agreement won’t automatically be invalidated unless it was also unconscionable at the time it was made. This is a crucial point to understand because it underscores the importance of both fairness and transparency in these agreements.

What Should Be Disclosed?

When drafting a California premarital agreement, it’s essential to fully disclose your assets and obligations. This includes detailing what you own (assets) and what you owe (liabilities). Full disclosure helps to ensure that the agreement is fair and that both parties are entering into it with their eyes wide open.

Alternatively, you can include a clear waiver in the agreement where both parties acknowledge and agree that they don’t require full disclosure from each other. This waiver must be voluntary and explicitly stated in writing. It’s not enough to verbally agree to waive disclosure; it has to be in the agreement itself to be legally binding.

The Role of Case Law: In re Marriage of Bonds

The case of In re Marriage of Bonds (2000) 24 Cal.4th 1, 99 Cal.Rptr.2d 252, 5 P.3d 815 is an interesting one because it highlights the flexibility in disclosure requirements. In this case, the California Supreme Court held that the disclosure need not be as stringent as for marital settlement agreements. The court upheld a California premarital agreement even though it didn’t include a detailed asset schedule, as long as the parties had a general understanding of each other’s property.

However, while this case shows that courts can be lenient, it’s still safer to be as thorough as possible with your disclosures. After all, the more complete your disclosure, the less room there is for challenges down the road.

Why Income Disclosure Matters in California Prenuptial Agreements

Income disclosure is another critical aspect. Although there’s some debate among courts, including a case where a trial court invalidated a California prenuptial agreement because the wealthier party didn’t disclose their income, the safest route is to be thorough. Disclosing income from all sources can prevent future disputes and ensure that the agreement stands up in court.

How to Make Your Agreement Bulletproof

To minimize the chances of your California prenuptial agreement being challenged:

  1. Fully Disclose Everything: This means assets, liabilities, and income. The more transparent you are, the better.
  2. Waive Disclosure Explicitly: If you’re not going to disclose fully, make sure your agreement includes a clear, written waiver where both parties acknowledge their right to full disclosure and voluntarily waive it.
  3. Offer Financial Records: Offer to make your financial records available to your partner. This shows good faith and can be a critical factor if the agreement is ever challenged in court.

Practical Steps to Full Disclosure

Here are some practical steps to ensure full disclosure in your premarital agreement:

  1. List All Assets: Include real estate, bank accounts, investment accounts, retirement accounts, valuable personal property (like jewelry or art), and any other significant assets.
  2. Detail Liabilities: Include mortgages, car loans, student loans, credit card debt, and any other significant obligations.
  3. Income Sources: List all sources of income, including salaries, bonuses, rental income, dividends, and any other income streams.
  4. Valuation: While the law doesn’t require you to disclose the exact value of each asset, providing a reasonable estimate can be beneficial. This shows transparency and can help prevent disputes.
  5. Supporting Documents: Attach supporting documents to your disclosure. This could include bank statements, property appraisals, loan documents, and tax returns.

The Role of Waivers in Disclosure

As mentioned earlier, it’s possible to waive full disclosure, but this needs to be done carefully. The waiver must be:

  1. Voluntary: Both parties must agree to it willingly.
  2. Explicit: The waiver must be clearly stated in the agreement.
  3. In Writing: Verbal agreements won’t cut it; it must be documented in writing.

Waiving full disclosure can streamline the process, but it comes with risks. If the waiver isn’t clear or one party later claims they didn’t understand what they were waiving, the agreement could be challenged. Therefore, if you choose to include a waiver, make sure it’s detailed and both parties fully understand what they’re agreeing to.

The Impact of Case Law on California Premarital Agreements

Several cases have shaped the way courts view disclosure in premarital agreements. For instance, In re Marriage of Facter (2013) 212 Cal.App.4th 967, 985, 152 Cal.Rptr.3d 79 highlights that both failure of disclosure and unconscionability are needed to invalidate an agreement. Meanwhile, In re Marriage of Bonds (2000) 24 Cal.4th 1 and In re Marriage of Burkle (2006) 139 Cal.App.4th 712, 43 Cal.Rptr.3d 181 provide examples of how courts handle these issues in practice.

Understanding these cases can help you see the importance of thorough disclosure and the potential pitfalls of inadequate disclosure. It also underscores why it’s crucial to work with a knowledgeable attorney when drafting your California prenuptial agreement.

The Benefits of Full Disclosure

Besides legal compliance, full disclosure has several practical benefits:

  1. Transparency and Trust: Full disclosure fosters trust between partners. It shows that both parties are entering the marriage with a clear understanding of each other’s financial situation.
  2. Preventing Disputes: Thorough disclosure can prevent disputes down the road. When both parties know what they’re getting into, there are fewer surprises and less potential for conflict.
  3. Enforceability: An agreement with full disclosure is much more likely to be enforceable. Courts are less likely to set aside an agreement if it’s clear that both parties were fully informed.

Addressing Potential Challenges

Even with full disclosure, California premarital agreements can be challenged. Here are some common grounds for challenges and how to address them:

  1. Voluntariness: One party claims they were coerced into signing. To counter this, ensure the agreement is signed well in advance of the wedding and both parties have independent legal advice.
  2. Unconscionability: One party claims the agreement is grossly unfair. To prevent this, ensure the agreement is balanced and fair to both parties.
  3. Disclosure: One party claims they weren’t fully informed. This is where thorough, documented disclosure comes in. Keep detailed records of all disclosed information and any waivers.

Having independent legal counsel for both parties is crucial. This ensures that both parties fully understand the agreement and their rights. It also helps to prevent claims of coercion or misunderstanding later on. Each party should have their own attorney to review the agreement and provide advice.

Documenting the Process

Documenting the process of creating the California premarital agreement is also important. This includes keeping records of all disclosed information, communications between the parties, and any legal advice received. This documentation can be invaluable if the agreement is ever challenged.

The Bottom Line

California prenuptial agreements can provide valuable protection for both parties, but only if they’re done right. Full disclosure is a critical part of this process. By being transparent and thorough, you can create an agreement that stands up in court and protects your interests.

If you’re considering a premarital agreement, take the time to understand the requirements and work with a professional who can guide you through the process. It’s an investment that can provide peace of mind and protect your future.

Conclusion

Understanding the importance of disclosure in California premarital agreements is essential for anyone considering this legal arrangement in California. By fully disclosing your assets, liabilities, and income—or clearly waiving the right to such disclosure—you can create a strong, enforceable agreement. Remember, the goal is to enter your marriage with trust and transparency, laying a solid foundation for your future together.

If you need assistance with your California premarital agreement, don’t hesitate to reach out to a knowledgeable professional who can help you navigate this complex area of law.

Read More About California Premarital Agreements

The California Prenuptial Agreement — Dotting the “i’s” and crossing the “t’s”.
Prenuptial Agreements Are on the Rise, And More Women Are Requesting Them
Family Law Agreements
Becoming a Mediator: How to Decide If Mediation Is the Right Career for You

Becoming a Mediator: How to Decide If Mediation Is the Right Career for You

by | May 24, 2024 | Uncategorized

Learn about the benefits and challenges of becoming a mediator and what skills and qualifications you need

 

Introduction

 

Mediation is a process of resolving disputes between parties in a constructive and collaborative way. Mediators are neutral third parties who help the parties communicate, understand each other’s perspectives, and find mutually acceptable solutions. Mediation can be used for various types of conflicts, such as family, workplace, business, community, or legal disputes.

 

If you are thinking about changing your career to mediation, you might be wondering if it is the right choice for you. Mediation can be a rewarding and fulfilling career, but it also comes with some challenges and demands. In this blog post, we will explore some of the benefits and drawbacks of becoming a mediator, as well as the skills and qualifications you need to succeed in this field.

Benefits of Becoming a Mediator

There’s some real benefits to becoming a mediator. Here’s a list of several.

You can make a positive difference in people’s lives by helping them resolve their conflicts peacefully and amicably.

As a mediator, you play a crucial role in positively impacting lives by guiding people to resolve their disputes in a peaceful and friendly manner. Mediation offers a secure and organized setting for individuals to engage in frank and sincere dialogue, aiming for a resolution that everyone can agree on. In steering this process, mediators assist in easing stress, enhancing connections, and fostering resolution. The ripple effect of this can be significant, touching not just the disputing parties but also their families, friends, and the broader community.

Mediation can also help to prevent conflicts from escalating and becoming more destructive. By addressing issues early on, parties can avoid the need for costly and time-consuming legal proceedings, and can reduce the risk of long-term damage to relationships. This can have a positive impact on the wider community, by reducing the burden on the legal system and promoting social harmony. Overall, the role of a mediator is to help parties to find a peaceful and amicable resolution to their conflicts, and in doing so, to make a positive difference in people’s lives.

 

You can enjoy a flexible and varied work schedule, as you can choose your own hours, clients, and cases.

One of the benefits of becoming a mediator is the ability to enjoy a flexible and varied work schedule. As a mediator, you have the freedom to choose your own hours, clients, and cases. This allows you to tailor your work schedule to fit your personal and professional needs, and to balance your work and life commitments.

 

For example, you may choose to work part-time or full-time, during the day or in the evening, on weekdays or weekends. You may also choose to specialize in certain types of mediation, such as family, workplace, or community mediation, or to work with a diverse range of clients and cases. This flexibility and variety can make your work as a mediator more interesting, challenging, and fulfilling.

 

You can work in different settings and sectors, such as private practice, government agencies, non-profit organizations, courts, or schools.

As a mediator, you have the opportunity to work in a variety of settings and sectors, including private practice, government agencies, non-profit organizations, courts, or schools.

  • In private practice, you can work independently or as part of a mediation firm, providing mediation services to individuals, businesses, or organizations.
  • In government agencies, you can work as a mediator to resolve disputes between government entities or between the government and private parties.
  • In non-profit organizations, you can work as a mediator to resolve disputes within the organization or between the organization and external parties.
  • In courts, you can work as a court-appointed mediator to help parties resolve their disputes before going to trial.
  • In schools, you can work as a mediator to resolve conflicts between students, between students and teachers, or between parents and the school administration.

 

Working in different settings and sectors can provide you with a diverse range of experiences and challenges, and can help you to develop your skills and expertise as a mediator.

 

You can develop your communication, listening, problem-solving, and interpersonal skills, as well as your emotional intelligence and cultural competence.

As a mediator, you have the opportunity to develop a wide range of skills that are essential for effective communication and conflict resolution. These skills include communication, listening, problem-solving, and interpersonal skills, as well as emotional intelligence and cultural competence.

  • Communication skills are essential for mediators, as they need to be able to facilitate dialogue between parties, convey information clearly and concisely, and help parties to express their thoughts and feelings.
  • Listening skills are also crucial, as mediators need to be able to listen actively and attentively to what parties are saying, and to understand their perspectives and concerns.
  • Problem-solving skills are important, as mediators need to be able to help parties to identify the underlying issues, generate options, and find mutually acceptable solutions.
  • Interpersonal skills are essential, as mediators need to be able to build rapport, establish trust, and manage emotions and conflicts between parties.
  • Emotional intelligence is important, as mediators need to be able to understand and manage their own emotions, as well as to recognize and respond to the emotions of others.
  • Cultural competence is crucial, as mediators need to be able to work effectively with parties from diverse backgrounds, and to respect and appreciate cultural differences.

 

Developing these skills can help you to become a more effective mediator, and can also benefit you in other areas of your personal and professional life.

 

 

Challenges of Becoming a Mediator

There are varied challenges to becoming a mediator.  Here are some:

You might face complex and emotionally charged situations, where the parties are hostile, distrustful, or unwilling to cooperate.

As a mediator, you might face complex and emotionally charged situations, where the parties are hostile, distrustful, or unwilling to cooperate. In such situations, it can be challenging to facilitate communication and collaboration between the parties, and to help them find a mutually acceptable solution. The mediator must remain neutral and impartial, while also managing the emotions and conflicts between the parties. This requires a high level of skill, patience, and emotional intelligence. The mediator must also be able to build trust and rapport with the parties, and to help them overcome their hostility, distrust, or lack of cooperation. This can be a challenging and demanding task, but it is also an opportunity for the mediator to make a positive difference in the lives of the parties involved.

You might have to deal with ethical dilemmas, such as conflicts of interest, confidentiality issues, or power imbalances.

As a mediator, you might have to deal with ethical dilemmas, such as conflicts of interest, confidentiality issues, or power imbalances. These situations can be challenging and require careful consideration and decision-making.

  • Conflicts of interest can arise when a mediator has a personal or professional relationship with one of the parties, or when the mediator has a personal interest in the outcome of the mediation. In such cases, the mediator must disclose the conflict of interest and, if necessary, recuse themselves from the case.
  • Confidentiality issues can arise when parties share sensitive or confidential information during the mediation process. The mediator must ensure that this information is kept confidential and is not disclosed to unauthorized parties.
  • Power imbalances can occur when one party has more power, resources, or influence than the other party. In such cases, the mediator must take steps to level the playing field and ensure that both parties have an equal opportunity to participate in the mediation process.  A skilled mediator learns how to address power imbalances from a neutral point of view.

 

Dealing with these ethical dilemmas requires a high level of integrity, professionalism, and ethical awareness. The mediator must adhere to the code of ethics and standards of practice of their profession, and must always act in a neutral and unbiased manner with the parties involved.

 

You might have to cope with stress, frustration, and burnout, especially if you handle multiple cases or deal with difficult clients.

 

As a mediator, you might have to cope with stress, frustration, and burnout, especially if you handle multiple cases or deal with difficult clients. Mediation can be emotionally and mentally demanding, as it involves dealing with complex and emotionally charged situations, managing conflicts and emotions, and finding mutually acceptable solutions. It’s important for a mediator to feel comfortable in the center of the conflict –  basically “in the eye of the storm.”

 

Handling multiple cases or dealing with difficult clients can add to the stress and pressure, and can increase the risk of burnout. To cope with these challenges, mediators need to develop effective stress management and self-care strategies, such as taking breaks, practicing relaxation techniques, seeking support from colleagues or mentors, and setting realistic goals and boundaries. It is also important for mediators to maintain a healthy work-life balance, and to engage in activities that promote physical, mental, and emotional wellbeing.

You might have to invest time and money in training, education, certification, and professional development, as mediation is a competitive and evolving field.

As a mediator, you will need to invest time and money in training, education, and professional development, as mediation is a competitive and evolving field. To become a mediator, you need to have certain skills and qualifications, such as a bachelor’s degree in a relevant field, a training program in mediation, and a certification or license in mediation. This investment in your education and professional development can help you to stay up-to-date with the latest developments in the field, and to enhance your skills and expertise as a mediator. It can also help you to stand out in a competitive job market, and to attract more clients and cases.

You might have to market yourself and build your reputation and network, as mediation is largely based on referrals and word-of-mouth.

As a mediator, you might have to market yourself and build your reputation and network, as mediation is largely based on referrals and word-of-mouth. Getting business can take a lot of work.

 

This means that you need to actively promote your services and expertise, and to establish yourself as a trusted and competent mediator. You can do this by creating a professional website, business cards, and brochures, and by using social media and other online platforms to reach out to potential clients and partners. You can also attend networking events, conferences, and workshops, and join professional associations and organizations to connect with other mediators and professionals in the field.

 

 

Building your reputation and network is crucial for attracting clients and cases, as well as for establishing yourself as a respected and recognized mediator in the community. By providing high-quality mediation services, and by consistently demonstrating your skills, expertise, and professionalism, you can build a strong reputation and network, and attract more referrals and word-of-mouth recommendations.

 

 

Skills and Qualifications for Becoming a Mediator

Your clients will count on you.  So, it’s important you know what you are doing and can demonstrate it.  Dispute resolution is a real art. To become a mediator, you need to have certain skills and qualifications, such as:

  •  A graduate degree in a relevant field, such as psychology, sociology, law, or business. Some employers or clients might prefer a specialized certificate in mediation or conflict resolution.  Getting an underlying license in a relevant field such as in law, mental health or financial services is essential.
  • A training program in mediation, which typically covers topics such as mediation theory, practice, ethics, and techniques. You can find various training programs offered by universities, professional associations, or private organizations.
  • A certification or a license in mediation, which might be required by some states, courts, or employers. (Keep in mind, California has no licensure requirements for mediators.) You can obtain certification or licensure by meeting certain criteria, such as completing a training program or gaining experience.
  • A portfolio of mediation cases, which demonstrates your experience, skills, and competence as a mediator. You can build your portfolio by volunteering, interning, or working as a mediator for different organizations or clients.
  • A set of core skills, such as communication, listening, empathy, patience, impartiality, creativity, and critical thinking. You also need to have a good understanding of human behavior, emotions, and culture, as well as the legal and ethical aspects of mediation.

 

Conclusion

Mediation is a rewarding and fulfilling career, but it also comes with some challenges and demands. If you are thinking about changing your career to mediation, you need to weigh the pros and cons, and assess your skills and qualifications. You also need to be prepared to invest in your training, education, certification, and professional development, as well as to market yourself and build your reputation and network. Mediation is not a career for everyone, but if you have a passion for helping people resolve their conflicts peacefully and amicably, it might be the right career for you.

 

Looking to Boost Your Mediation Career?

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Struggling to make the paradigm shift from litigation to mediation? Perhaps your mediation practice is not quite where you want it? Maybe you are feeling lost or overwhelmed?  Don’t struggle anymore.

				
			

			

				
				
				
				
			

				
				
			

				
					

			
					


											
								Navigating Divorce: Using Attorneys During Mediation							
					
															
Navigating Divorce: Using Attorneys During Mediation

					
					
 by  | Feb 28, 2024 | Uncategorized



				
				
				
				
				
				
				

				

				
				
				
				
				

				
				
				
				
				


Attorneys Play a Critical Role



In the realm of divorce proceedings, the involvement of attorneys plays a critical role in ensuring fair mediation and equitable outcomes for all parties involved. In our latest podcast episode, we delve into the nuanced world of divorce mediation and the indispensable role attorneys play in facilitating this process. Join us as we uncover the complexities, challenges, and pivotal moments of mediation guided by legal expertise.


 



Understanding Divorce Mediation



Divorce mediation serves as an alternative dispute resolution process, offering couples a collaborative and less adversarial approach to ending their marriage. Unlike traditional litigation, mediation encourages open communication and negotiation with the aim of reaching mutually agreeable solutions on key issues such as asset division, child custody, and alimony.


 



The Attorney’s Perspective



Attorneys serve as invaluable guides throughout the mediation journey, providing essential legal counsel and representation to their clients. In our conversation, we explored the multifaceted roles attorneys assume during mediation, including:


 


Legal Advocacy


Lawyers advocate for their clients’ interests, ensuring that their rights are protected and that any agreements reached are legally sound and enforceable.



Strategic Counsel:


With their expertise in family law, attorneys offer strategic advice on navigating complex legal frameworks and making informed decisions that align with their clients’ long-term objectives.



Emotional Support:


Beyond legal matters, attorneys also provide emotional support and guidance, helping clients navigate the emotional challenges inherent in divorce proceedings.



Key Takeaways from the Podcast



During our insightful discussion with legal experts, several key takeaways emerged:


 


Empowerment Through Knowledge:


Understanding the legal aspects of divorce mediation empowers individuals to actively participate in the process and make informed decisions that shape their future.



The Importance of Communication:


Effective communication between all parties, including attorneys, mediators, and clients, is essential for fostering cooperation and achieving mutually beneficial outcomes.



Tailored Solutions:


Every divorce is unique, and attorneys play a crucial role in crafting personalized solutions that address the specific needs and circumstances of their clients.



			

				
				
				
				
				
Attorneys Empower Clients During the Divorce Mediation Process



As our podcast episode highlighted, attorneys are indispensable allies in the divorce mediation process, offering expertise, guidance, and support every step of the way. By leveraging their legal knowledge and advocacy skills, attorneys empower individuals to navigate the complexities of divorce with confidence and clarity. Whether it’s safeguarding legal rights, providing strategic counsel, or offering emotional support, attorneys play a critical role in facilitating constructive dialogue and fostering positive outcomes in divorce mediation. 

			

			

				
				
				
				
			

				

				
				
				
				
				

				
				
				
				
				
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The Three Wisemen of Divorce: Money, Psych & Law Podcast a divorce mediation resource

				
			

			

				
				
				
				
				

				
				
				
				
				
Listen to "The Critical Role of Attorneys in Divorce Mediation"
The Critical Role of Attorneys in Divorce Mediation - The Three Wisemen of Divorce

				
Listen to the Episode Here

			

			

				
				
				
				
			

				
				
			

				
					

			
					


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

					
					
 by  | Dec 21, 2023 | Uncategorized

				
				
				
				
				
				
				

				

				
				
				
				
				

				
				
				
				
				
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 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.

			

			

				
				
				
				
			

				

				
				
				
				
				

				
				
				
				
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"Need
Consider a mediated Settlement Conference with Weber Dispute Resolution.  Call us at 858-410-0144 or click the button to learn more.

				
			

			

				
				
				
				
			

				
				
			

				
					

			
					


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

					
					
 by  | Dec 21, 2023 | Uncategorized

				
				
				
				
				
				
				

				

				
				
				
				
				

				
				
				
				
				
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 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.

			

			

				
				
				
				
			

				

				
				
				
				
				

				
				
				
				
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Consider a mediated Settlement Conference with Weber Dispute Resolution.  Call us at 858-410-0144 or click the button to learn more.