by Shawn Weber | Mar 18, 2011 | Uncategorized
I came across this funny video on YouTube. It strangely reminded me of a divorce mediation I conducted.
[youtube http://www.youtube.com/watch?v=iBLkOMvidwo&w=480&h=390]
The caption read, “N’Gos tlhogh cha! A simple procedure… This would save millions in attorney fees.” The mediation of which I am referring involved a couple that simply had to get out their emotions and frustrations before they could settle anything. I remember after a long period of haggling over what seemed to be trivial issues, the wife stood up and said, “I hate you and never want to see you again.” She then quickly settled on all issues over which they had been haggling for months. She didn’t care so much about the settlement as much as she cared about making sure he knew that she was finished with him.
Now I am not recommending that we move our divorces into violent Klingon style combat. However, I am suggesting that the simple expression of the hurt and anger can sometimes be important. I am a big believer that mediators and conflict managers such as myself cannot be afraid of conflict. We have to be able to embrace it, understand it, and work within it.
So many attorneys become mediators because they can’t handle conflict. They believe that moving into alternate dispute resolution will protect them from conflict. However, this thinking is wrong. Models like collaborative divorce or mediation, while going a long way to manage conflict, do not eliminate it. To be successful in such models, the professionals need to have the stomach for the raw emotions of hurt and anger to be expressed. Otherwise, they will invariably fail as conflict managers. It’s like a surgeon who faints at the sight of blood.
For me, the joy of conflict resolution comes largely from my ability to roll up my sleeves and get knee deep into the “muck” of emotions and humanity that is so present in divorce cases. It’s not that I enjoy the pain people are feeling. Rather, I enjoy the sheer humanity of it all. It is so rewarding to work with people in pain work through their conflict and come out better on the other side.
by Shawn Weber | Nov 3, 2010 | Uncategorized
By Shawn Weber, Attorney and Mediator
In this difficult economy, I am being asked frequently how to save money on a divorce. Divorce costs can be horribly expensive and can leave both parties destitute. Additionally, there are some unscrupulous attorneys out there who will “churn” a divorce case making a fortune in legal fees, but providing no real benefit to the client. For these sharks, a win is if the attorney’s party ends up with two dollars, the opposing party has one dollar, and the attorney has all the rest.
I can’t lie to you, though; divorce can cost an arm and a leg even with the most scrupulous of lawyers. However, there are some ways to watch and protect yourself from unnecessary fees. Here are some ideas that can help you navigate the legal system without losing your shirt:
- If possible, avoid court. Litigation is extraordinarily expensive. Aside from the expense of paying your attorney to sit in court and fight it out with opposing counsel, you are paying even more for the preparation leading up to court. Discovery, motions, evidentiary objections, legal research, appraisals, file organization, etc., all cost dearly in billable hours. The formalities of court that are there to protect your due process all drive up costs. A well written trial brief can cost a client thousands. While there is no other option for many parties, litigation should be a last resort. Before hiring your attorney, ask her what her philosophy is about settlement. Instruct him to pursue settlement first. If your attorney just has knee-jerk standard operating procedures to make discovery demands, schedule depositions and file motions without first seeking to obtain evidence informally, that is a huge red flag that you are about to drop a lot of money in fees. In my practice, if a client has to go to court, I see that as a failure. It is always better if the parties can settle as much as possible with using a judge. So be tough with your attorney and demand that she pursues settlement first. If you aren’t satisfied that settlement is a priority, consider moving to another attorney who will keep your divorce costs down.
- Consider using a mediator. In mediation, the parties hire a neutral to help facilitate agreement. Mediation can be very cost effective because most of the procedure and discovery is informal. You won’t need to involve your attorney except to obtain occasional advice along the way. You and your spouse are in the driver’s seat and the attorneys are on the sidelines. A good mediator will be able to help you balance the interests of both parties and help you to find a settlement that you can live with. I always recommend that parties obtain independent legal counsel in the cases that I mediate so that all decisions can be informed. However, you are only paying the attorney for his time to advise you and not to prepare for trial. I have been mediating for years and have seen that the cost of a mediated divorce is a fraction of the divorce costs of my litigated cases. Typically, the total cost of the mediation fees for both parties is around $6500 depending on the complexity of the case, whereas in litigation, $5000 may just get you started.
- Consider Using Collaborative Divorce. In a collaborative divorce, the parties and collaboratively trained attorneys sign a stipulation that they are not going to go to court. If either party chooses to litigate, both attorneys fall out of the process. As part of their “divorce team”, parties can choose to add mental health professionals who can act as a divorce coach or a child specialist as a member of the team. In addition, parties can add a financial specialist to the team. The benefit is that all of the experts work together with the parties in a team setting to reach a settlement. The outcomes are often superior to those achieved in litigation but with lower divorce costs. Additionally, there are tremendous economies of scale in using an attorney to do legal work only, a financial specialist to do the financial work and the coach/child specialist to work on the emotional issues. You often get a better product for less money. Collaborative can be cheaper than litigation if the parties can work together. The danger, however, is that if the parties do not work well together, the case can fall out and all of the work done by the team (and their fees) would be lost. However, if the parties can be respectful and work with the team honestly to achieve a better result for their transitioning family, the results can be tremendous.
- Consider Using Limited Scope Representation. You can also choose to do a lot of the divorce work yourself and use an attorney for limited purposes. For instance, you can hire an attorney to simply advise you on a case, not as your attorney of record, while you represent yourself at court. You can also hire an attorney for purposes of negotiation only with the understanding that she will do no court work. Other options include hiring an attorney only for a particular issue, such as child support or custody. Be sure to talk to your attorney about these money saving options. You may not need an attorney for every aspect of your case. Only pay for services that you need.
While a divorce can be terribly expensive, it doesn’t have to be. Remember, you are the boss and the attorney works for you. If your attorney refuses to talk about options besides full representation, beware. Talk to your lawyer about divorce costs. If a particular discovery request is to go out or a motion is to be filed, demand to know why before the action is taken. You can direct your attorney not to take a course of action, if you don’t want to pay for it or don’t find it necessary.
At Weber Dispute Resolution, we offer all of the options described above to include mediation, collaborative practice and no-court consultation. Our philosophy is that the case is ultimately yours and you are the one to decide how you want to spend your money. We can help you decide which option makes the best sense for you and your family.
If you have questions about keeping divorce costs down or about how best to proceed with your divorce or family law case, call us for a free telephone consultation at 858-410-0166.
by Shawn Weber | Mar 19, 2010 | Uncategorized
By Shawn Weber, San Diego Family Law Attorney and Mediator
The Family Court in San Diego County, California requires parents in a custody dispute to attend mediation at Family Court Services (FCS). At Family Court Services, the parents meet with a social worker who tries to broker a parenting agreement between the parties. However, if no agreement can be reached, the Family Court Services mediator makes a recommendation to the Court. This recommendation is often “rubber-stamped” by the Judge as the Court’s order. Sometimes an attorney can argue to change certain provisions in the recommendation, but only very rarely are the recommendations ignored. “Mediation” is a bit of a misnomer for the process because FCS really acts as an arbitrator. Because the process is not confidential empowering the social worker to make a recommendation, the parties need to take it very seriously and prepare.
Because the judges rely very heavily on the recommendations of the Family Court Services mediator, you should prepare for the mediation as though you were preparing for trial. In fact, you need to prepare more thoroughly for mediation than you would for trial, because your attorney is not allowed to be present during the mediation to assist you.
The following is a list of points to keep in mind when you prepare for the appointment.
1. Before the Family Court Services Appointment:
a. You can attend the weekly FCS orientation, which is held the third Tuesday of the month from 12:00 to 1:00 p.m., and the first Thursday of the month at 4:00 p.m. at the Family Court, 1555 Sixth Avenue, between Beech and Cedar Streets in downtown San Diego (optional). No appointment is necessary, meetings are on a first come first serve basis.
b. Arrive on time for the Family Court Services mediation appointment. You will be asked to fill out an FCS Mediation Data Sheet.
c. Make an appointment to see your attorney, so you can prepare your presentation, and bring with you a list of important points that you wish to make.
2. During the Family Court Services Appointment:
a. First impressions are important.
FCS Mediators are human beings too, and although they try to remain neutral, they cannot help but be influenced by their first impressions of people. You should present yourself as the parent who puts the best interest of the child ahead of your own interests.
b. Take your time.
If the other parent makes accusations about you to the mediator that you think are irrelevant, wait for an opening and then ask the mediator if you may respond. Then be guided by the mediator‘s response. If you are being interrupted by the other parent, ask the mediator to stop the interruptions.
c. Try to stay “on task“.
Do not be drawn into an argument with the other parent about your past relationship. The task is to determine a parenting plan that is in the best interest of the children.
d. Be prepared for the FCS mediator to ask questions.
The Family Court Services mediator will question the parent who wants to restrict the other parent‘s time with the children. You will be asked to give reasons for your views. In order to limit visitation, you must show that some harm to the children would result.
e. No financial issues.
The FCS mediator does not discuss financial issues with the parents such as support or property division.
f. Remember that the Family Court Services mediator is not your therapist.
Nothing that either parent says can remain confidential. If child abuse is disclosed during the mediation session, the mediator has a legal obligation to make a report to Child Protective Services.
g. In cases of domestic violence, meet separately.
If you or the children were physically abused, or if the other parent alleges that you committed such abuse, the mediator must meet with the parents separately upon the request of either party. You should make this request before the meeting begins. If allegations of physical abuse are present, these should be discussed with your attorney before the mediation appointment.
h. You should prepare to substantiate allegations of drug or alcohol abuse.
Criminal convictions or arrests are the best evidence, and you should have documents available. The court file can be copied and made available to the mediator. The drug or alcohol abuser will usually deny the problem. You can request that the other parent submit to monitored drug testing.
i. Do not make an agreement that makes you uncomfortable.
The Family Court Services mediator may try to pressure you into agreeing by saying that is what he or she will recommend anyway. You can say that you want to discuss it with your attorney first. If you agree in mediation, it is almost impossible to get out of your agreement. If you do not agree, you can review the written recommendation before court and agree to it at that time, if you wish to do so.
3. After the Appointment:
a. Be sure to write down the name of the mediator and give it to your attorney in case you need to contact her.
b. Please telephone your attorney to let him/her know the outcome of your mediation. In that way, if an important point needs to be clarified, he/she can set up a telephone conference with the mediator before the mediator writes his/her report.
c. The written FCS report will be available on the day of the hearing, or before. Sometimes, FCS will mail it to your attorney’s office before the hearing. You will have an opportunity to review the report before the hearing if you are present in court.
Should you have any questions or concerns regarding the Family Court Services mediation, do not hesitate to contact your attorney.
4. Family Court Services Prep Coaching.
If you feel you need additional coaching prior to an FCS appointment and you have the funds to pay for it, we highly recommend it. There are a number of former FCS mediators who can help prepare you and coach you for your mediation appointment. We have had good success with such coaching. The FCS mediation prep coach can role-play with you. You can bounce ideas off the coach and he or she can advise you about how an FCS mediator would react. If you need a referral to such a coach, ask your attorney.
In summary, you need to take your Family Court Services mediation seriously. This is where the rubber meets the road in your custody case. The mediator’s report usually sets the tone for how your entire custody case will go. A bad report can be disastrous. So, prepare, prepare, prepare!
NOTE: Since we wrote this post, Family Court Services no longer provides “mediation”. It is now called “Child-Centered Parenting Counseling”. Essentially, the service is the same. But, because true mediators would never make a recommendation to the court, we refer to it with the new description.
