Archive for conflict

6 Tips for Successful Holiday Co-Parenting

By Shawn Weber, Family Law Attorney and Mediator

holiday co-parenting cookies

When we think of the holidays, we think of family.  Our traditions are all about bringing the family together and celebrating togetherness. We have Norman Rockwell style images in our heads of the family (and children) gathered around the table with something delicious.  Whether it’s lighting the menorah or setting out cookies for Santa, the Holidays inspire hopes for greeting card type scenery and happy times with our children.  After all, “it’s the most wonderful time of the year.”

However, for single parents, the holidays can be especially trying.  As a family law attorney, I typically see an uptick in custody and visitation disputes prior to every major holiday.  It makes sense that the most emotionally meaningful calendar dates for people sometimes lead to the most emotionally driven family disputes.

It is always amazing to me that a time of year for celebrating peace on earth can be so full of conflict.  Often I will get a frantic call right before a special day.

Examples are:

  • “The kids were with my ex last year. Now he wants to take them again!”
  • “I have been planning a visit with my kids to see my parents in another state and now she is ruining our plans!  I already bought plane tickets!”
  • “He is trying to buy the kids with expensive gifts.  It makes me look terrible!  He knows he doesn’t pay me enough support and I can’t keep up with him!”
  • “She is threatening to show up right in the middle of our holiday dinner.”

Below are some tips learned through years of trial and error as a family lawyer to help co-parents get through the holidays:

Tip #1:  Be Specific In Your Holiday Co-Parenting Plan 

There is a reason why lawyers write everything down.  When you have your agreement in writing, there is less opportunity for playing games.  When I draft custody orders, I try to include a written holiday schedule with specifics about when the kids will be with each parent for which holiday.  For example, a provision might look something this:

“In every even-numbered year, Sarah shall be in the Father’s care at 10:00 A.M. on December 24 until 10:00 A.M. on December 25 and in the Mother’s care from 10:00 A.M. on December 25 until 10:00 A.M. on December 26.   In every odd-numbered year, this schedule shall reverse.”

(As an aside, notice that I split up the Christmas holiday in a way that lets both parents share in the fun.  This is a very typical type of provision to consider including in your holiday co-parenting plan.)

The more specific your order, the less confusing your holiday co-parenting will be on the day of the holiday.  Remember, confusion and ambiguity breed conflict and disagreement.

Tip #2:  Don’t Wait Until the Last Minute.  Discuss and Agree to Holiday Co-Parenting Plans Early.

Planning a trip to North Dakota with the kids for winter break?  Then make your holiday co-parenting plans and get your ex’s agreement early.  I can’t tell you how many times I have seen a party make plans and buy non-refundable tickets only to have those plans dashed at the last minute because they didn’t consult with the other parent.  Talk about it early.  Agree on travel plans.  Get it in writing.

Tip #3:  Talk to each other about gifts.

It can be very awkward when both parents buy little Susie a Big Hugs Elmo.  So, make an effort to coordinate.  And please, don’t make it a competition.  It’s about your child after all.

Tip #4:  Control the Relatives.

Your child does not need to hear anyone speaking ill of the other parent over turkey, even if he really is a big jerk.  Make sure that relatives and family members refrain from bad mouthing.  Remember, that’s your child’s other parent they’re talking about.  When you allow other people to speak ill of the other parent in front of your children, it only hurts the kids.

Tip #5:  Don’t be selfish.  Share!

There is a real temptation to want to keep all of the holiday fun for yourself.  Avoid that type of thinking.  When you are co-parenting, you simply may not get to spend every holiday with your child.  It’s the season of giving—remember?  However, you may consider (if you are up to it) spending a holiday together with the ex.  Why not do the Santa thing together? It can really make a holiday special for your child if you can pull it off without fighting.  Be realistic about it, though.  If you really can’t get through an evening with your ex without throwing your egg nog at him, then go the separate route.

Tip #6:  Respect Boundaries.

If it is your ex’s year to have the kids on a holiday, remember to be respectful of her time with the kids.  Don’t interfere.  Do not try to show up at the house unannounced during dinner.  Don’t worry.  I know it may be really difficult to be away from your little ones during a special holiday, but it will be okay. Don’t let your kids be the subject of a tug of war on a day that is supposed to be merry and joyful.  Let them experience the holiday without being placed in the middle of your struggle.  Just let go—at least for the holiday.  Your ex will be grateful and will be more likely to return the favor when it’s your year.

Holidays After Divorce – Bring Peace on Earth to Your Kids

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

high conflict divorce litigation, family court scene, divorcing couple at a settlement conference

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 2451California 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.

ADR mediation conflict resolution skillsBecause 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.

 

Want to get your case past stuck?
Consider a mediated
Settlement Conference with
Weber Dispute Resolution.
Call us at 858-410-0144
to start settling your case.

 

[i] Certified Specialist – Family Law, The State Bar of California Board of Legal Specialization.

 

Five Questions to Ask When Hiring a Divorce Mediator

mediation conflict resolution skillsNot every divorce mediator is the same.

In fact, some are much better than others.  What’s more, a bad family mediator can cost you a lot of stress and money in the long run.   Good conflict resolution requires a very specific set of skills.  In other words, it’s best to get a mediator as your neutral third party who knows what she is doing.

In California, there are no licensure requirements for mediators.  So, it’s buyer beware to some extent.

Here are some questions to ask a divorce mediator:

#1: How much mediation training has the mediator had?

Training is really important.  Good mediators have a specific skill set in working with parties to resolve their differences.  These listening and communication skills are crucial to a case going well or poorly.

Make sure your mediator has sufficient training and has received continuing training too.  For example, if they just took a course 15 years ago without getting updates, they will probably lack crucial skills.

Looking for divorce mediation training?
Check out Family Resolution Institute here
for more information.

#2:  What other professional credentials does the mediator have?

Make sure your mediator has professional know-how beyond just a one-time mediation training course.  Typical mediators are either lawyers, mental health professionals or financial professionals.  They should have a working knowledge of the family law issues you are going to face.

When drafting a settlement agreement, it is often helpful to have a lawyer serve as your mediator.  Mental health professionals are excellent for custody cases or cases where emotions are high.  Financial professionals help a ton with money issues.  If there is no other underlying credential, you might want to look elsewhere.

Also, be careful of unlicensed professionals.  For instance, just because someone has a J.D., they may not necessarily be a licensed attorney.  You certainly don’t want a disbarred attorney as your mediator.  If they don’t have an active license, ask why.

#3:  Is the mediator a full-time mediator, or a dabbler?

It’s best to get a mediator who mediates on a full-time basis.  Be careful of dabblers.  A person who mediates full-time takes the profession seriously.

People often get into trouble if they hire a person whose full-time job is as an adversarial attorney or a therapist, for example, who may only mediate now and then.  Such folks will likely not have the skills you need to get results.

#4:  Beware of one-day or super cheap processes.

Marriage is not an easy thing to unwind.  Be careful of mediators who promise results in one day or some other very short time period.  Chances are, you will feel rushed, and your settlement will not cover what it needs to cover.  A good process typically involves several mediation sessions.

Also, be careful of super-cheap mediators. In many cases, you really do get what you pay for.  There can be lasting consequences if you rush your divorce process and miss something important.  Spend the time and money to get it right!

#5:  Ask the divorce mediator about his/her process and conflict resolution style.

Every mediator is different and may have a different style.  Some mediators are much more facilitative while others are more directive and evaluative.  As a result, the relationship with your mediator is very personal.

A mediator who is excellent for one couple may not be so good for another.  So take the time to get to know the mediator, her process, and style before you agree to mediate.

Very importantly, don’t rely on your mediator for legal advice.  Even if your mediator is an attorney, he can’t be YOUR attorney because of conflict of interest concerns.  So it is always smart during any mediation process to consult with a lawyer to ensure your decisions are informed.

It’s important to know the right questions to ask a divorce mediator.  Hopefully, these tips will help you with the mediator selection process.

At Weber Dispute Resolution, we provide both collaborative law and mediation services.  To get more information, give us a call at 858-410-0144.

 

Further reading:

How much does it cost to go to divorce mediation?

Does Divorce Mediation Work for Complicated Financial Issues?

Forgiveness During Divorce: A key to finding peace

You can control how angry and hurt you remain after your divorce.  Using principles of forgiveness during divorce will help you control divorce emotions and move on.

Let Go to find forgiveness during divorce

Almost every divorce involves a situation where somebody did someone wrong.  Or… at the very least, someone feels like someone did somebody wrong.  Sometimes I feel like I am living the B.J. Thomas song, “Another Somebody Done Somebody Wrong Song”.

The reality is that divorce sucks.  It hurts a lot in fact.  As a California divorce mediator, I used to hide behind the excuse that California is a no-fault state and what happened to lead to the divorce is legally irrelevant.  But the no-fault concept misses the point that divorce is more than just a legal process; it’s a human experience.

Divorce Causes Real Pain:  The Need to Control Divorce Emotions

The parties to a divorce are real people with real pain.  Often a case just won’t settle until the parties can process their divorce emotions, hurt, and pain.

I don’t mean to minimize the pain of divorce emotions because I know it is very real.  However, one can find that place where a person can let go of the anger and hurt in order to move on.  Forgiveness during divorce and after really is possible.

Don’t Be a Monkey

Perhaps you have heard of the fable of the monkey trap.  Apparently, you can take a jar with an opening large enough to fit a monkey hand and fill the jar with cookies.  The monkey then comes along, inserts his hand through the opening to grab a cookie.  However, because his fist with the cookie is now larger than the opening to the jar, the monkey can’t remove his fist and is trapped.  Rather than rationally letting go of the cookie, the monkey will remain trapped indefinitely.

There is at least some truth to the story as shown by this video about a hunter capturing a baboon with a similar strategy:

Similar to the monkey who won’t let go, we tend to hold onto our grudges.  By holding onto our hurt and anger with a clenched fist, we can become trapped until we figure out to let go.  Similar to the monkey, it’s hard to escape a divorce situation without learning to also release the clenched fist.  A person might finish her divorce, but will still carry the pain into the post-divorce life and even into the next relationship.

Forgiveness during divorce is an important way to release anger.

Buddha said, “Holding on to anger is like grasping a hot coal with the intent of throwing it at someone else; you are the one who gets burned.”  Anger and the search for revenge rarely help anything.  They certainly don’t bring peace.

If you find yourself consumed with anger when you think of your ex, consider letting go.  Make a conscious decision to forgive the other person.  Notice that I am not suggesting that you allow anyone to cause you harm again.   I simply suggest that forgiving and letting go of the anger will help to control divorce emotions.  It will go a long way to finding peace.

Remember, forgiveness during divorce is an exercise that only the injured person can control.  It does not require the wrongdoer to pay for what he did to you or to apologize. The other person does not even need to be sorry.  Your forgiving and letting go is entirely up to you.  It’s not easy, but it is completely within your control.

If you find forgiveness during divorce difficult to achieve and find that it gets in the way of moving on, consider discussing the issue with clergy or a mental health professional.  Until you can control divorce emotions and let go of the anger, you, like the monkey, will be stuck.

If you think forgiveness during a divorce is too hard, you are wrong.  It is reachable.  There are tons of examples in the world of people who forgave the unspeakable and made their lives better.  See the examples below:

See also:

How to Forgive and Why You Should: http://health.usnews.com/health-news/articles/2012/08/29/how-to-forgive-and-why-you-should

Man Exercises a Year of Forgiveness After a Drunk Driver Kills Wife, Two Children:  http://www.deseretnews.com/article/695239655/A-year-of-forgiveness.html?pg=all

Forgiveness: Letting go of grudges and bitterness: http://www.mayoclinic.org/healthy-lifestyle/adult-health/in-depth/forgiveness/art-20047692

How much does it cost to go to divorce mediation?: https://weberdisputeresolution.com/divorce-mediation-cost/

Five Tips to Have a Miserable Divorce

miserable divorce

Looking for a miserable divorce?  Here’s how!

Under the best of circumstances, a divorce can be an awful experience.  But there are some things you can do right now to make sure that you have a completely horrible, miserable divorce.  Here are some tips:

1.  Hire the cheapest attorney.

You get what you pay for and an attorney can be the difference in having a good divorce or a miserable divorce.  So by all means, hire the cheapest attorney in the phone book.

2.  Find a shark to represent you.

Make sure that you find the toughest and meanest attorney you can find.  Make sure she is very expensive.  Look for the largest ad in the phone book and find the picture of the attorney with the angriest face.  This is a sure way to increase the conflict in your divorce and make things completely awful.  A shark attorney will do a good job of running up the clock and the billable hours, but generally won’t care about you at all.  The shark will unnecessarily increase the conflict so that he can increase his billable hours.  What little relationship you have left with your soon to be ex will be out the window and you will have years of anger and hatred to look forward to.  When the case is over, you will probably have to declare bankruptcy because the definition of victory for a shark is that you have $2, your spouse gets $1 and the lawyers get the rest.  Best of all, you will spend your kids’ college funds and probably put your lawyer’s kids through school instead.

3. Whatever you do, don’t get a therapist.

You don’t want a therapist to help you with the emotional turmoil you are experiencing now.  You want to be plagued by depression, anger, guilt, and anxiety.  A therapist can help with all of those things, so to truly have a miserable divorce, you want to avoid any mental health professional.  Try to deal with it yourself and let your emotions blossom into a full blown temporary psychosis.

4. Use your children as pawns.

One important key to having a miserable divorce is to destroy your kids in the process.  Studies have shown that the conflict of divorce does more to harm kids than the divorce itself.  So go out of your way to increase the conflict between you and your ex.  Make sure that the kids are in the middle of the conflict.  Use them as messengers for adult business.  Tell them about how horrible your ex is.  Make sure that you fight for every minute with your kids that you can.  Be sure to have a lot of shouting and swearing when you exchange the kids.  That’s a sure way to make sure that your children grow up to have depression, relationship problems, obsessive-compulsive disorder, eating disorders and drug addictions.  Best of all, your children will grow to resent you, which would truly make for a miserable divorce.

5. Demand justice.

There is no such thing as justice in Family Court.  That’s why to have a miserable divorce you should demand it!  It’s a sure way to spend a lot of time, money and energy only to be disappointed.  Don’t compromise unless it meets your perfect definition of justice and fairness.  Because your spouse probably has a different opinion of what “fair” means, this technique is particularly effective at disappointing you.

These are my top five.  Do you have any others?  Comment below and share with me your tips for a miserable divorce.

See Also:

Forgiveness During Divorce: https://weberdisputeresolution.com/forgiveness-during-divorce/

How much does it cost to go to divorce mediation? https://weberdisputeresolution.com/divorce-mediation-cost/

How can we divide personal property without going crazy?

Sometimes it is most difficult in divorce cases to divide personal property —the “stuff” accumulated over the years of a relationship. When people share their lives with each other, they also share and accumulate a lot of personal property. Sometimes the task of dividing the household furniture, furnishings and appliances can be a real struggle. Not only can it be difficult to physically divide and value the assets, it can be a real emotional rollercoaster.

I mediated for a divorcing couple recently, who had their most difficult struggles dividing the pots, pans, furniture, washer, dryer, stereo and those little knick-knacks they picked up at the swap meet over the years. Worse they were on the “pack rat” side of things so they accumulated a lot of things together. Each item represented something important. One piece of artwork reminded them of their romantic vacation in Mexico. The silver they had purchased together to celebrate their 25th wedding anniversary. The little statuette on the mantel was a gift from their child. All through the house they saw many symbols of their relationship and all that they had invested in each other. As a result, a task to divide personal property was extremely painful.

Here are some tips to help you divide personal property:

Understand that the court would only award a household asset at garage sale value.

divorce, personal property, divide personal property, san diego divorce attorneyUnless it is a Steinway Grand Piano or a rare piece of artwork, the chances are high that your stuff is not worth nearly what you may think. While you are looking at the values of things, think of what you would, as an objective outsider, pay for the item at a garage sale or a flea market. Be careful not to allow emotions to “inflate” in your mind the value of the flatware or the coffee maker. Yes we know that the teddy bear collection is absolutely adorable, but honestly, what would a third person really want to pay for it. Use common sense and don’t allow your emotions to cloud things for you when you divide personal property.

Do it yourself.

It is really not cost effective to pay your attorney $300 plus per hour to fight about who gets which couch or who gets the bath mat. If it’s a high dollar asset such as expensive artwork or collectable antiques, you may want to use your professionals. But, for most things it makes more sense to save the money and do it yourself.

Do an inventory first.

It’s a good idea early in the process and before you start dividing things to make a list. If time is a problem, I often recommend going through the house with a video camera and speaking about each item as you tape. You can then go make your list later.

Make a list to divide personal property.

In fact, make several lists. I suggest four columns. Column 1 means he gets it. Column 2 means she gets it. Sell everything you list in column three and divide what money you get equally. Column 4 is for those things in your closet to throw away or donate like the polyester suit in the closet, your old beta video tapes or the pile of Louis L’Amour novels that you haven’t read in twenty years. Notice, I am not including a list for items about which you cannot agree. I am a big believer in using the old Solomon method. If you can’t agree on who gets it, then sell it or donate it. You simply can’t afford, for most items, to spend the time arguing and spending money on your attorneys. One idea, if you are stuck, is to just take turns picking items you can’t agree on until they are gone. Another idea is to give extremely sentimental items as gifts to your children.

Make a plan for photographs and videos.

I recommend that you choose a date when each of you will make photographs and videos taken during the marriage available to the other. The person making the photograph or video available will allow the other to choose which ones her or she would like to duplicate. There are services available that can duplicate these items and even restore some of them for you for a reasonable fee. With today’s computers, scanners and printers, you may be able to do a lot of this yourselves. Each of you should share equally in the duplication costs.

Pets, according to the law, are property.

I have had many clients tell me how their pets have become nearly as important to them as children. They are often surprised to learn that the court deals with them not as living things so much as property. Few courts will entertain a pet “custody battle.” Remember, a court has the ability to truly play Solomon with your pets and order them sold. I advise parties to do everything they can to work it out relating to the pets. Do everything possible to consider your pets’ needs and do what is best for them rather than allowing them to become an issue of property division.

Be careful if there is a history of domestic violence.

In cases where there has been domestic violence, sometimes it is difficult to sit together and divide personal property. In such instances, it is probably advisable to go ahead and use your attorney as at least a go between. Naturally, if there are restraining orders in place, it would be impossible to meet face to face. But the same ideas described above apply. It is just you will need to make arrangements to inventory the house without the other being present and with proper legal arrangements. Don’t violate a restraining order just to get some stuff out of the house.

I have had many clients tell me that the process of dividing the personal items was a healthy cleansing process.

One client told me, it was nice to get rid of some of our old, useless stuff and start over for a fresh, clean break. If even after following these steps, a couple still finds it difficult emotionally, I recommend making use of a divorce coach, who can even come to your home while you do the division. Typically using a single divorce coach is much more cost effective than using your attorneys to divide household items.

If both parties approach the task to divide personal property with a fair, patient and open mind they will likely be successful in doing the division with little to no attorney intervention. The court’s are particularly happy when parties can reach agreements on their own. Parties should be careful not to allow the division of things bring unnecessary conflict. Remember, they are just things and not people.

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