Archive for Mediation – Page 2

Early Intervention: Why Mediation Early in a Family Law Case Can Save Money and Stress

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

If your family law case is at a crossroads, consider mediation to take it from conflict to quick conclusion. Photo: Geralt/Pixabay

If your family law case is at a crossroads, consider mediation to take it from conflict to quick conclusion. Photo: Geralt/Pixabay

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

You don't have to endure the nuclear option in a high conflict case. Mediation can be highly successful. Photo: Alex Andropov86/Pixabay

You don’t have to endure the nuclear option in a high conflict case. Mediation can be highly successful. Photo: Alex Andropov86/Pixabay

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

Court ordered family centered case resolution plan under the California Family Code Section 2451 is a valuable tool in your toolkit.

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.

Is Divorce Mediation Legally Binding?

Divorce mediation can provide a useful alternative to working with attorneys, but there are some details you need to know to make it legally binding. Photo: MrHayata/Creative Commons License

Divorce mediation can provide a useful alternative to working with attorneys, but there are some details you need to know to make it legally binding. Photo: MrHayata/Creative Commons License

Legally Binding Agreements Are Possible with Divorce Mediation

Frequently someone will tell me a particular family law case is not appropriate for mediation because they don’t believe they will get a legally binding agreement out of the process. This frustrates me, because it is so far from the truth.  Let’s explore the key question: is divorce mediation binding?  The short answer: yes.  There are easy ways to make sure your divorce mediation is binding. Let’s talk about them in more detail.

Be sure you understand the limitations of a handshake agreement in mediation.

Handshake agreements are NOT binding

Often, parties to a mediation will make small agreements, or “handshake” agreements.  These type of agreements will not be binding on anyone if they end up being fought over in litigation.

There are times when people mutually agree on a handshake to seal a deal to make it enforceable. Mediators sometimes employ simple handshake agreements in divorce mediation.  Perhaps two parents want to agree in good faith they will pay for a child’s college tuition. But they don’t want to put themselves in a position of violating a court order if for some reason anything changes due to loss of employment or an expensive medical emergency, which would make paying for college impossible. These folks will agree in principle — or morally — they will work cooperatively to pay for college.  However, such moral or handshake agreements are NOT binding.

Put your mediated agreement in writing if you intend it to be legally binding. Photo: Antonio Litterio/Wikimedia

Put your mediated agreement in writing if you intend it to be legally binding. Photo: Antonio Litterio/Wikimedia

To make divorce mediation legally binding, get it in writing

When you are ready to sign off on an enforceable agreement, get it in writing. Most attorney mediators will create the legal document for you to sign. If you are working with a non-attorney mediator, he or she will probably prepare a memorandum of understanding. You can then take this paperwork to an attorney to draft a binding document. Once all parties sign, the agreement is binding like any other contract.

Follow the Code of Civl Procedure to ensure agreement enforcement

The California Code of Civil Procedure (CCP) section 664.6 provides a way for agreements reached pending settlement to be enforced by the court.  Section 664.6 provides:

“If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

Sometimes when parties reach an agreement during their divorce mediation, I will write up the notes of the settlement on a legal pad and note it is a binding agreement pursuant to CCP 664.6. When the parties sign, the agreement is binding and the Court will enforce it.

Have your attorney review your mediated agreement

Before anyone signs on the dotted line, I always advise parties to have a lawyer review their agreement. As the mediator, I have to be neutral like Switzerland. This means I can’t advise you about your legal rights or your best interests without violating legal ethics. Parties should have a lawyer who can review documents and provide the necessary legal advice before signing.  This reduces your risk, and guarantees everyone is making informed decisions.

Only a judge can ensure your mediated divorce settlement is legally binding and enforceable under the law.

Only a judge can ensure your mediated divorce settlement is legally binding and enforceable under the law.

Only a judge can make your agreement legally enforceable

It is your option to send your mediated agreement to a judge for signature. This is particularly common when you use mediation to create a final marital settlement agreement for your divorce. The mediator sends the signed agreement to the Court for the judge’s signature. Once the judge signs, the agreement becomes an order of the court.  This means it is enforceable just like any other order of the court. This is the only way you can turn to the legal system in the future if someone violates any portion of the agreement.

 

Does mediation sound like the right process for you?  Call us at 858-410-0144 to make an appointment with San Diego Divorce Mediator Shawn Weber today.

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Does Divorce Mediation Work for Complicated Financial Issues?

Complicated financial issues can make a divorce complicated. Mediation can help you sort out your issues.

Complicated financial issues can make a divorce seem complicated. Mediation can help you sort out your issues.

One common myth about divorce mediation deserves a debunking:  You can’t mediate when there are complicated financial issues. This advice is completely wrong. The opposite is true. The more complex your divorce finances, mediation offers the best way to sort them out without resorting to expensive litigation.

Comparing costly, stressful divorce litigation in court, and the same divorce process using mediation, these are the reasons why mediation can be a better choice for complicated fiancial situations.

Financial disclosure same for mediation as in court

Financial declarations in divorce cases are the same no matter whether you go to court, or pursue alternative dispute resolution.

Financial declarations in divorce cases are the same no matter whether you go to court, or pursue alternative dispute resolution.

Courts require the identical forms used in mediation. Parties complete an Income and Expense Declaration (FL-150) and a Schedule of Assets and Debts (FL-142). The law requires disclosure of all material facts and circumstances related to money – whether asked for or not.

Additionally, parties can have financial disclosures reviewed by counsel before agreeing to anything. Whether your divorce is simple or you have profoundly complicated financial issues, your divorce process will require full disclosure. There is no difference between mediation and litigation in the level of detail.

Because mediation relies on informal discovery rather than formal and expensive discovery, people actually tend to get more information in mediation than in litigation.

Lawyers know the name of the game when served with discovery in a litigated case is to provide as little information as legally possible.  It’s even more the case when there are complicated financial issues.  But in a mediation, the information tends to be more forthcomingbecause people are not being forced into tedious formal discovery processes.  This may seem counterintuitive, but actually it’s human nature.  When people are forced to do things they tend not to cooperate.  When things are more voluntary, people are less threatened and more likely to do what they are supposed to do.

Use a neutral financial specialist in mediation

The financial specialist can help gather information when there are complicated financial issues. Sometimes the parties may not know which questions to ask relating to the divorce finances.  The financial specialist can help know what questions need to be asked and can also alert parties to red flags.  This is especially helpful when the parties are at different levels of knowledge relating to the finances.  The financial specialist helps bring people to a level playing field.  Reports that the financial specialists produce can be very helpful in uncovering options and finding pathways to settlement.

Mediation lets you be creative with solutions for your divorce finances

Judges must follow the law. The law isn’t flexible. Judges have limited options to offer you. But when people mediate, they are free to create a settlement best for the family.

I have seen many “outside-the-box” settlements in mediation. Most are far better for the family than what a court could ever provide.

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There is no risk in mediation. Parties are not required or pressured to enter into any agreements without the option to talk with a lawyer before signing. You can have an agreement reviewed by your own financial professional at any point.  This ensures parties are not left to their own devices when considering challenging money questions.

Avoid shark attorneys who discourage mediation

Shark type attorneys will discourage you from mediating. They might tell you court is your only option. Be skeptical. If you have significant assets, they want your case. This serves their interests, not yours. They know they can make a ton more money if they can fight over your financial issues.

Don’t get sucked into a litigated case when you don’t need to. You might believe your case is so difficult, only a judge can sort things out. In today’s family courts, judges do not have the time to spend on complicated details. Those details important to you can be lost. A skilled mediator can handle any issue you present. Mediators take all the time you need to be sure you address and resolve each detail to your satisfaction.

Make sure your mediator possesses the training and experience necessary. When things get complicated, he or she should be willing to bring in additional experts. Ask whether he or she has worked with couples in circumstances similar to yours. Your mediator should be able to offer examples. Don’t work with someone getting on the job training during your case.

Read more about money and mediation:

Mediating Your Divorce When The Other Party Is a Bully

We Don’t Get Along Very Well. How Can We Possibly Mediate Our Divorce?

Will I Be Able to Keep the House?

Watch my appearance on Real Divorce Talk on Facebook Live

I was very pleased to have the opportunity to appear on Real Divorce Talk, a new show streaming via Facebook Live.  We talked about my “Tips to Have a Miserable Divorce.”  We also covered topics like emotions, Collaborative Divorce and divorce mediation. Be sure to leave a comment and let me know what you think.

Five Tips to Have a Miserable Divorce

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

What Does Alternative Dispute Resolution Mean?

options, difference, mediation, questions, answers

The term “alternative dispute resolution” (or “ADR”) is often used to describe conflict resolution without going to court.

If you find yourself facing a family law matter, you might first ask, “How do I avoid going to court?”   Parties can use ADR for any family law issue, whether it’s a divorce, child custody dispute, or support issues.  But, there is a lot of confusion about what ADR practice actually entails.  Professionals and parties alike often use words like “mediation,” “arbitration,” and “private judging” interchangeably.  However, these terms could not be more different.

The main theme of all of these alternative dispute resolution options is that the mediator, arbitrator, or private judge acts as a neutral.  They are not there to advocate for or legally advise either party.  Rather, they are there to get the parties to a resolution, or settlement.  However, the powers and abilities that they have depends entirely on which process you choose.

MEDIATION

Mediation is typically what most people think of when they think of staying out of court and reaching an agreement.  A mediator’s job is to help the parties communicate with each other so they reach an agreement themselves.  A mediator does not make any orders or decisions for the parties.  Rather, a mediator facilitates an effective dialogue between the parties.  Sometimes, a mediator might provide legal information about what the law says, but will never provide legal advice to either party.  Mediation allows parties to never go to court, because it is a private process outside of court.  Mediation is usually the most informal process of these three options.

ARBITRATION

Arbitration is similar to a trial at court.  However, the arbitrator is the one who makes the decision rather than a public judge.  Each side will present their case to the arbitrator.  They might use the same procedural tools as a court process might require, such as discovery and evidence.  An arbitrator then makes a decision based on each side’s case.  Arbitration takes place outside of court, and is usually more relaxed and informal than the courtroom.

Parties might choose arbitration because they want a private, third-party neutral to make a decision for them, but don’t want to set foot inside a courtroom.  There are two kinds of arbitration – either binding or non-binding.  Binding arbitration means that the arbitrator’s decision is final, and the parties must accept that decision.  However, non-binding arbitration means that if the parties disagree with the arbitrator’s decision, they can go back into court to have a judge decide.

PRIVATE JUDGING

Private judging is very similar to arbitration, except a private judge has the ability to make binding court orders the same way a public judge does.  With private judging, parties generally go through the same process as litigation.  This might include procedures like filing a motion at court, but a private judge would determine the case instead.

A private judge is usually much more accessible than a public judge.  This is because private judges are typically experienced family law attorneys, or retired former judges.  Their schedules tend to be more flexible than the impacted calendars of current sitting judges.  Private judges are also able to devote more focus to one case at a time.  With court, a matter may take several months before a court even has time to hear it.  Parties might choose private judging if they want to have the structure and formalities of litigation, but don’t want to go through the courtroom or deal with the wait times of the court’s calendar.

There are many different options for conflict resolution.  It’s important to know which one suits your personal situation best, as each process has its own pros and cons.  It’s a good idea to discuss your options with a knowledgeable family law attorney who is skilled with ADR practice.  He or she can help you navigate the intricacies of a family law matter, no matter which process you choose.

Divorce Mediation: Why patience with your spouse is so important

 

cartoon diagram about patience and the difference between the plan and the reality of achieving success

In my divorce mediation career, I’ve learned over the years that people approach divorce from different places.  Sometimes people want the divorce very badly and are happy to get started.  Others are devastated by the breakup.

 

It’s not uncommon for a couple in the process of their separation to move at different speeds.  One party may be ready to move quickly while the other spouse may be having a terrible time and may need to move more slowly.  In my experience, the divorce mediation will only move as quickly as the slowest person.  That can be very frustrating to the spouse who wants it over with.  My best advice is to take your time and give the other person the time and space he or she needs.

Divorce can feel like a death.

In her seminal work, on Death and Dying, Dr. Elisabeth Kübler-Ross describes the “Five Stages of Grief”.  They are Denial, Anger, Bargaining, Depression and Acceptance.  Divorce professionals have learned to spot these very same stages and patterns when people face the loss of their marriage during a divorce.  (See The Emotional Stages of Divorce: What to Expect During and After the Divorce ProcessThe Emotional Stages of Divorce: What to Expect During and After the Divorce Process)  We’ve learned that people are unable to effectively deal with the present issues of the divorce without reaching the point of acceptance that the divorce is happening.  But to get to acceptance, people first need to travel through the other four grief stages.  That can take some time.  If you’ve sat with your decision to divorce for awhile before breaking it to your spouse, it is likely that you went through the five stages of grief on your own before reaching your own point of acceptance.  Your spouse, who may be just learning of your intention to divorce is late to the grief cycle.  You’ll need to afford him or her some patience and time to work through it.

If you’ve been sitting with your decision to divorce for awhile before breaking it to your spouse, it is likely that you went through the five stages of grief on your own before reaching your own point of acceptance.  Your spouse, who may be just learning of your intention to divorce is late to the grief cycle.  You’ll need to afford him or her some patience and time to work through it.

Forcing a person to complete a divorce case before completing the grief process can be problematic.

First, a rushed agreement is rarely followed.

The person who is rushed will resent the process and will likely make efforts to undermine or to revise the agreement.  Worse, a party who agreed under duress would have grounds to set aside the settlement altogether.  It is better to take the time to get the settlement right so that there is buy-in from both parties.

Second, pushing the slower party often has the opposite of the intended effect.

If you own a dog, you may very well know the behavior that happens when you try to pull on a dog’s leash.  The dog will tug in the opposite direction or may even stubbornly stop moving or sit down.  In divorce mediation, trying to rush a party often has the same effect.  The slower spouse who is rushed may even slow down more.

Third, not allowing the slower spouse room to accept and deal emotionally with the divorce mediation process can lead the pushed spouse to choose more aggressive and expense processes such as divorce litigation.

Trust me, the wheels of justice at court will turn even slower.  So it’s best to work with your spouse to try to reach consensus.  But if that consensus doesn’t come overnight, it’s not the end of the world.  Letting your spouse have the time in a safe space to deliberate, review financials and consult with a lawyer is best even for the faster spouse because pushing a person too hard can lead to a much slower court process.

In Divorce Mediation, Slower is Faster.

So be patient and compassionate towards your soon-to-be ex.  Let him or her have time to deal with the emotional pain of the breakup.  Don’t push so hard that he or she slows down or worse, chooses to litigate.  Sometimes slower is, in fact, faster.

See also these related posts:

Can I Be Divorced Yesterday? Or is Slower Faster? by Shawn Skillin, Esq.

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

Five Tips to Have a Miserable Divorce

Human Side of Divorcing