We see many experienced family law specialists make this common DissoMaster* mistake with the health insurance deduction.
Paid By Party
Pre-tax Wage Deduction
So don’t be a DissoMaster dunce!
So you have the big mediation date planned. You hope the mediator will be able to work whatever magic she has so you can move the case to settlement and put the case to bed. You’ve prepared yourself. You know the law. You have your arguments ready. You’ve done your study of the facts. But you forgot something crucial. You forgot to prepare the most important person to your case—the person who actually has decision making power—your client!
Clients who prepare for mediation simply do better. Client preparation significantly increases the chances of reaching a settlement. Preparation is an often overlooked component of successful dispute resolution. Importantly, clients are happier when they can settle outside of court. So, here are seven tips to prepare your client for mediation.
To prepare your client for mediation, it’s important for them to be clear on what is expected of them in mediation, and what the role of the mediator will be. Mediation is not court. It is not counseling or therapy. It’s a negotiation facilitated by a third-party neutral.
The mediator is there to facilitate and to help people bridge their gaps from a neutral perspective. The mediator doesn’t give legal advice and doesn’t get a tie-breaking vote if the clients disagree.
All decisions are up to the parties to mutually agree. Mediation does not require people to get along. A good mediator will facilitate the conversation and bring balance — even in cases where one party may be a better negotiator than the other.
It really helps if your client is prepared and armed with information. This reduces the amount of time the mediator has to spend educating the client. If they know what their rights are before they come, then they are more able to consider proposals for settlement.
Also, assure them no one will be expected to sign binding agreements without the advice of counsel. This goes a long way toward calming any fears of being “tricked” into an agreement.
People come to their conflicts with a myriad of emotions. Most of us, whether we admit are not, make most of our decisions through the lens of our emotions. This is fine unless the emotions become so intense that we lose our ability to think rationally. In divorce cases in particular, emotions affect almost all of the clients decisions. Sometimes parties themselves in the difficult state of fight or flight and are unable to think clearly. If left unmanaged, a negative emotion can make reaching accord much harder.
If you are like most attorneys, you have not been trained in psychology. It’s good practice to know where your limitations are. Why not involve a mental health professional to act as a divorce coach to prepare clients to prepare themselves emotionally for what might be a challenging meeting.
Coach your clients on the importance of managing one’s own emotional responses. It’s good to normalize coping tools such as taking a break or breathing. If you are going to be there with your client during the mediation, come up with a signal, such as a keyword or a hand gesture, to indicate when a person is loosing it. That way, when the signal is given, you can take your client outside to calm down.
A good mental health professional can even help the client come up with mindfulness tools to keep them grounded. You want your client to bring his or her best self so that she or he can negotiate rationally.
It’s common for a client to have unrealistic expectations about how good their case is. They may believe that their case is a slam dunk and that all they need to do is get in front of a judge so that can explain their case. Naturally, the judge will see it their way.
But we all know that such is not always the case. In Roger Fisher and William Ury’s seminal work, Getting to Yes: Negotiating Without Giving In, Fisher and Ury coined the phrase of the “Best Alternative to a Negotiated Agreement” (BATNA for short). This is basically your client’s best case scenario if they end up in front of a judge. A strong BATNA can empower decision making.
A client with an overoptimistic BATNA will make choices that put them at risk. If they have a more realistic BATNA, it’s an important tool in negotiating a mediated agreement. If a proposal is superior to your BATNA, then should take it. Having a proposal that is worse than your BATNA will result in a person being less like to accept a proposal.
Be careful, however, that you as the professional also have a realistic BATNA. I can’t tell you how often I have seen attorneys poorly advise their client because of an unrealistic BATNA. They then go to court and sometimes get an unpleasant surprise. So make sure you are thinking things all the way through yourself!
Fisher and Ury also teach us the phrase “Worst Alternative to a Negotiated Agreement” (WATNA for short). Basically, the WATNA is the worst case scenario if your client ends up in court. Sometimes a proposal is worth taking simply because it could be so much worse. It’s a strategy of minimizing risk.
If your client is unrealistic about the worst case scenario and therefore has an uninformed WATNA, that can be very dangerous. Your client may walk away from a deal that minimizes risk because he or she doesn’t understand how bad it can be. Just like with the BATNA, make sure you are being realistic too.
I’ve seen a lot of attorneys advise their client not to accept a reasonable proposal only to go to court and do worse. Client’s don’t love it when that happens- especially if they acted on your advice. So, make sure you’ve got the BATNA right and be ready to move your BATNA or your WATNA once you get into the negotiation and learn new information.
Fair is the “F” word. Instead, focus on making a “good business decision.”
In negotiations, “fair” is largely meaningless. What one person may define as fair may be worlds apart from what the other party defines as fair. I find it best not to got there. Fair is the “F” word in my conference room.
Rather, I coach my clients to leave “fair” behind and stretch for a good business decision. If everybody is giving something up and a little disappointed, that means we are compromising… and that is GOOD.
Help your clients look for an agreement they can live with rather than an agreement that will conform to a mythical understanding of fairness. Sometimes, the deal won’t ever be perfect. But if you want your client to stay out of court, it may just have to be good enough.
He or she isn’t negotiating to get a bargain on a used car. It is a waste of time to offer terms pushing the extremes with the sole intention of pushing the other party to come closer a desired result. It is the road to frustration, mediation breakdowns, and a date in court in front of a judge.
See also: Tips on Making and Receiving Proposals
Judges have long constrained speech that would unnecessarily expose kids to the nastiness and details of the battle over who gets custody of the children between their parents.
However, a new case issued by California Court of Appeal (Second Appellate District) seems to set a new boundary around what kind of speech the court can constrain. It is particularly interesting given the new era of social media communication we live with today.
In this matter, a rather nasty Mr. Molinaro earned the privilege of receiving a domestic violence restraining order under the Domestic Violence Prevention Act (DVPA). The list of his hideous behavior included blocking his wife’s car in the driveway, threatening to throw a chair through the window if she didn’t unlock the door, and threatening to euthanize the dog. A real charmer.
Mr. Molinaro also endeared himself to the court by arguing with the judge, calling him ‘insane.’ He was so hostile at court, bailiffs had to repeatedly admonish him to calm down.
Mr. Molinaro posting rants about his ‘unfair’ treatment in the case on his Facebook page. Among other things, he posted “about the divorce, about everything that’s happening.” His soon to be ex-wife testified he “posted to Facebook that [she] stole $250,000 from [their] home equity line, that [she] used it all and ran away with it.” She testified, “He says that I am crazy and having hallucinations.”
To protect the children from being exposed to their father’s Facebook rants about the case, the trial court ordered “Neither party is to discuss any aspect of the case with the minor children until further order of the court-including Facebook posting [about the] subject case matter.”
Granting the wife’s application for a restraining order, the court ordered her then-husband not “to post anything on Facebook … in regards to this action … ” In an attachment to the restraining order, the court ordered the parties “not to post anything about the case on Facebook” and “not to discuss the case with the children.”
Mr. Molinaro appealed the trial court’s order.
The appellate court upheld all of the provisions of the restraining order, except for the restraint on Facebook posting, finding it to be an overbroad and impermissible infringement on free speech.
The court held:
“Although we have found the evidence sufficient to support the court’s issuance of a domestic violence restraining order, we conclude the part of the order prohibiting Michael from posting ‘anything about the case on Facebook’ is overbroad and impermissibly infringes upon his constitutionally protected right of free speech.”
The court further argued:
“’It is certainly in the best interests of the children of divorce that adults in their lives act in a mature and courteous manner’ [citation]; however, where a restraint on the freedom of speech is concerned, the restriction must be necessary and narrowly tailored to promoting those interests. The part of the restraining order prohibiting Michael from posting about the case on Facebook does not meet this test. We conclude it is overbroad, constituting an invalid prior restraint, and must be stricken from the domestic violence restraining order.”
So, to sum it up, Mr. Molinaro is still a jerk. But he can talk about it on Facebook.
An interesting case came down from the California Court of Appeal Fourth Appellate District. It should serve as a warning to any attorney practicing in California. The underlying case had to do with an appeal of a trial court’s order relating to an employment dispute. The case is Martinez v. O’Hara, No. G054840 (Cal. Ct. App. 4th. App. Dist. Feb 28, 2019). The portion of the opinion of most interest to family law attorneys is the section regarding attorney misconduct.
Apparently, the Notice of Appeal signed by the plaintiff’s attorney contained the obscure word, “succubustic.” The Court of Appeal provided the definition of “succubus.” It’s defined as a “demon assuming female form which has sexual intercourse with men in their sleep.” Nice.
Said the Court, “We publish this portion of the opinion to make the point that gender bias by an attorney appearing before us will not be tolerated, period.” To illustrate their point, the Appellate court reported the offending lawyer to the State Bar.
The Court zeroed in on the following passage in the notice of appeal as particularly offensive:
“Pursuant to Code of Civil Procedure section 904.1 et seq., Plaintiff Fernando Martinez hereby appeals from the lower court’s disgraceful order dated November 30, 2016, as incorporated into a reported judgment dated Febryary 21, 2017, and [as] such, technically appeals from that judgment. The ruling’s succubustic adoption of the defense position, and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to reverse peristalsis unto its four corners.”
Aside from being horribly written, this statement is just stupid. I wonder if counsel even knew what the words “succubustic” or “pseudohermaphroditic” mean. Surely, attorneys ought to know the exact meanings of their big words. Not only did this passage offend the sensibilities of the Court as a demonstration of bias, prejudice or harassment based on gender, but it is simply bad writing.
The court also found that statements in plaintiff’s briefs accusing the “trial court of intentionally refusing to follow the law” and suggesting that the “trial court tried to prevent plaintiff from receiving notice of the signed judgment in an effort to thwart appellate review” were made without any support in the record. As such, these statements also constituted reportable misconduct.
The appellate court aptly wrote in conclusion,
“We further note that many of the words and phrases in the notice of appeal have no place in a court filing. We cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words ‘disgraceful,’ ‘pseudohermaphroditic misconduct,’ or ‘reverse peristalsis’ in the notice of appeal.”
Be careful what you write in your briefs. Insult a judge at your peril. If your pleadings contain words demonstrating gender bias against a judicial officer, you may find yourself on the wrong end of a State Bar ethical complaint.
Jennifer Lee, associate attorney with Weber Dispute Resolution, joined her colleagues from the Pan Asian Lawyers of San Diego (PALSD) at the San Diego City Council meeting on Tuesday, May 15. San Diego City Councilmember Chris Cate presented the group’s representatives with a proclamation declaring May 2018 as ‘Asian Pacific American Heritage Month.”
Lee is currently serving on the Board of Directors of PALSD as treasurer.
Jennifer Lee has been a part of the Weber Dispute Resolution team since October 2015. She practices the “Dolphin Lawyering” philosophy. Jennifer strives to help clients reach a settlement out of court, but she is a capable litigator when necessary. She specializes in providing clients with the practical knowledge they need to make the right decisions for their family.
Jennifer understands every family is unique, using her skills to reach creative solutions and provide pragmatic representation for her clients. She brings patience, kindness, reason, and humility to every interaction. As a result, clients can trust they will be seen, heard, understood, and supported.
Jennifer speaks Mandarin Chinese and in addition to her role with the Pan Asian Lawyers of San Diego, she is an active member of the San Diego County Bar Association, San Diego Family Law Bar Association, and San Diego Chinese Attorneys Association.
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.
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.
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.
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.
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.
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.