Archive for For Professionals – Page 2

New Case – Watch out if asking question in a deposition about a custody evaluation

New Appellate Case: Anke v. Yeager

There is a new appellate which came down from the Second Appellate District of the California Court of Appeal on February 4, 2019.  The case is Anka v. Yeager and can be found here https://law.justia.com/cases/california/court-of-appeal/2019/b281760.html.

You know it’s going to go badly for the attorney in the case when you read this in the opening paragraphs quoting the oath of admission required to practice law described in California Rules of Court, rule 9.7:

“These cautions are designed to remind counsel that when in the heat of a contentious trial, counsel’s zeal to protect and advance the interest of the client must be tempered by the professional and ethical constraints the legal profession demands. Unfortunately, that did not happen here.”  [Emphasis added.]

Yikes!

Sanctions for revealing the contents of a custody evaluation in deposition questions

In Anka v. Yeager, an attorney asked a question during a deposition as part of a child custody dispute about the contents of a custody evaluation.  The displeased trial court ordered $50,000 in sanctions against the attorney and party under Family Code sections 3025.5 and 3111.  The trial court found that the attorney’s asking questions about the custody evaluation in the presence of the court reporter and videographer at the deposition constituted an unjustified, malicious and reckless disclosure of the contents of the custody evaluation.

When the sanctioned attorney appealed.  She argued that the court reporter and videographer were “officers of the court” and were, therefore, exempt under 3025.5.  However, the appellate court held the court reporter and videographer were not employees of the court and were therefore not exempt.  The trial court did not abuse its discretion by imposing the sanctions on the attorney.  The attorney by asking deposition questions referencing the custody evaluation disclosed highly personal information about the child and family.  Moreover, disclosure in the form of questions in the presence of a court reporter was malicious and reckless.  The court affirmed the sanction of $50,000 against the attorney but reversed the sanction against the attorney’s client.

Be careful about asking questions in a deposition about a custody evaluation!

So, what is the lesson here? In a custody cases, do not ask questions about the custody evaluation in a deposition without court clearance.  If you screw this up, you may be paying a lot of money in sanctions and could even face discipline.

Big Change Coming in California Mediation Law in 2019 You Need to Know About

New Form Required by California Evidence Code § 1129

Top Five Principles for Successful Family Law Conflict Managers

In my years as a consensual dispute resolution professional, I have gotten to know a lot of professionals who try to manage conflict in divorce and family law situations. Some are very successful… and others not so much. I have compiled a list of my top five principles for successful family law conflict managers.

Mediating manager ponders about new business ideas. A light bulb as a concept of new ideas.

1. PATIENCE

This is not a race. Parties involved in a divorce are in crisis both emotionally and often financially. Don’t expect them to just reach a compromise in five minutes. The temptation is to try to “cut to the chase.” After all, we probably have an idea of where the settlement is long before the parties do because of our experience. But the parties need to “own” the agreement and they can’t if we just decide it for them and then try to force it on them.

Our job is NOT to twist arms. Our job in successful dispute resolution is to help the parties find solutions. In my experience, arm-twisting rarely results in a lasting settlement. It does, however, leave a terrible taste in the mouth of the person whose arm you just twisted. If people feel pressured or forced, we may reach a settlement, but it is unlikely we will have been able to help the parties reach a transformative outcome. Worst of all, they will resent us.

Rather, we should let the case proceed organically. We will guide, inspire and motivate– but never, ever force.

2. HUMILITY

Newsflash! It’s the parties’ case- not yours. Your job is to help guide people to a respectful outcome. You are not the finder of solutions or the sage of wisdom. Your job is to shine a light on problems and help the parties find their own solutions.

I have seen mediators brandish their stats as a weapon in mediation. For example, parties may be stuck at impasse and the mediator says, “I have a 98% settlement rate and you are ruining my statistics!” Your dispute resolution statistics, as far as the parties are concerned, are completely irrelevant to their problems. Sure, you try and find solutions, but the moment you invest yourself personally invested in the outcome as a matter of pride, you are doing your parties a huge disservice.

In my experience, most of the best ideas come from the parties not me. While I sometimes see myself as the “brainstormer-in-chief” trying to provide as many ideas as possible that the parties may not yet have thought of, I never lose site of the reality that the case belongs to the parties. My most important job in brainstorming, however, is not to be the one with the great idea. Rather, I strive to create an environment were the parties can find the solutions on their own. I am the facilitator. I am not the decider. My personal pride is not important.

3. EMPATHY

Perhaps the most important skill a mediator can learn is the ability to listen. I am not talking about the superficial surface listening. I mean deep, empathic listening.

To help parties settle, you have to really understand the conflict. This requires more than just listening to words. You need pay attention to body language and non-verbal cues. Prepare yourself to dig deep to find out what really motivates a party and what his or her interests truly are. Yes, she may be telling you that it is about the house or the best interests of the kids. But maybe down deep, she is really just afraid or insecure about her future. In such a situation, no financial settlement can satisfy the party who is afraid until the fear is acknowledged and addressed. This may take some digging to find, but until you do, you won’t help the parties reach a lasting settlement.

I find that I have to make sure I listen with more than just my ears. I also listen with my eyes, my heart and my soul.

Good dispute resolution requires your humanity.  Remember, this isn’t just a legal process; it’s a human experience. Until we can get into the world our clients are experiencing, we are limited in what we can help them unlock for themselves.

4. FLEXIBILITY

Because I work with people, I have learned to be ready and open for the unexpected. People don’t fit into compartments. My dispute resolution process, therefore, needs to have flexibility built in. A good mediator or dispute resolver can pivot quickly. Rigidity is the enemy of success when people are involved.

My mantra is “People before process.” While we may be very proud of our protocols and systems, the moment we allow them to drown out the needs of the clients, we miss the whole point of our service—to guide and help PEOPLE. We will keep our processes and protocols, but won’t be afraid to modify when the needs of the parties dictate a change.

5. PRINCIPLED BOUNDARIES

While it is important to be empathic and flexible, it is still important to have principles and boundaries, which we don’t compromise. For instance, I don’t ever let a party compromise my neutrality. I also insist on clarity surrounding how a party can communicate with me outside of the dispute resolution process. I guard my weekends and off hours, which are reserved for my own family. These and other principles and boundaries will not only preserve my own sanity, but they also communicate to the client that this is a business transaction and that there is a professional process that is deserving of respect.

While I am all about compassion and kindness, I am not a family member or a friend. I am a professional with a job to do. I do that job best when there are boundaries. Whenever I have allowed a boundary to be compromised, I regret it because the case almost always will go south.

I have found these principles to be crucial to my own practice. Perhaps you have other principles you would like to share. Let me know what works for you!

Read also:

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

We don’t get along very well. How can we possibly mediate our divorce?

Why “Fair” is the F-Word in Divorce Negotiations