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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.

 

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.

tips to divide personal property, san diego divorce, san diego divorce attorney, Shawn Weber, san diego divorce mediator

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

The F-word

Those of you who know me are aware that my wife and I have five kids.  When I tell people how many kids I have, there is usually an audible gasp and sometimes an expletive.  (I don’t know why because I love my kids.)  But as any parent will know, kids have a lot to learn about this world.  One very important lesson to learn in the Weber house is that a lament that something isn’t “fair” gets you nowhere.  We make it clear to the kids that “life isn’t fair and the sooner you learn that, the better off you’ll be.”  That’s why “fair” is the F-word.

When people come through my door, I see the tumult in their lives.  Clients will often make demands for what they view as the “fair” outcome.  However, “fair” is a subjective concept and quite impossible to define objectively during family law or divorce negotiations.  In their search for peace, clients sometimes bog themselves down in a vain attempt to achieve an unachievable result.

Really, there is no such things as a”fair divorce” in family law.

There’s a reason for that.  The idea of “fair” is rooted in one’s perspective and perception.  We view “fair” through our own prism of reality.  In family law or divorce negotiations, what one party might view as fair is often different from what another person views as fair.  If fair were easy to define, I would be out of a job because people would just be able agree with little to no effort.  But fair is not an objective standard.  Fair is always subjectively defined.  A truly fair divorce is very rare.

fairness divorce, "fair" is the f-word, divorce negotiations

Why “Fair” Is the F-Word

The Myth of Lady Justice

Concepts of “justice” are equally subjective.  The statue we see at the courthouse of Lady Justice with the blindfold and the scales is a myth.  Anyone who has spent any time around a courthouse knows that achieving true justice is rare.  Rather, the courts simply apply the imperfect laws written by imperfect legislatures and interpreted by imperfect courts.  Very often, folks perceive the application of those laws as unfair or unjust.

Make a Good Business Decision

Rather than asking, “what is fair,” it makes more sense to ask, “What is a good business decision?” or “What will maximize my outcome given the hand that I have been dealt.”   These questions remove the emotional and loaded questions regarding justice and fairness. They allow the participant to focus on reaching a settlement that he or she can live with.  A settlement by definition requires compromise.  A compromise by definition means that both parties are giving something up. A fair divorce, in that situation, isn’t the point.  Rather, the focus is on making a decision that can end the conflict so that a person can move on, which in turn will bring peace.

Many of the rapids on our journey through life a borne in a sense of dissatisfaction with the choices before us.  Divorce has a way of limiting many of our choices.

I’ve never seen a client find peace in life by focusing on what is fair or unfair.  Peace comes from finding a resolution and reaching an acceptance of what is.   It’s an opportunity to transition from a conflictual sense of being to one that is harmonious and whole.

See Also:

Five Tips to Have a Miserable Divorce: https://weberdisputeresolution.com/five-tips-to-have-a-miserable-divorce/

Forgiveness During Divorce: A key to finding peace:  https://weberdisputeresolution.com/forgiveness-during-divorce/

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

Shawn Weber, CLS-F: https://weberdisputeresolution.com/meet-our-team/shawn-weber/

Five Tips to Reduce Your Divorce Stress that Most Attorneys Won’t Tell You

Stress Management ConceptDivorce and legal separation can be an extraordinarily difficult time in a person’s life. Clearly, divorce is not just a legal process; it’s a human experience. Although there are legal and financial questions to address, the transitioning of the family is not without a good deal of divorce stress. Here are some ideas to help manage the divorce stress that a lot of attorneys will never share with you:

Consider a No-court Option

If you ever want to get depressed, spend a day at the family court observing the poor folks being shuffled through adversarial litigation. At court, the lawyers make a lot of money and the parties cede the control of their futures to attorneys and strangers in black robes. While some cases require court, most do not. There are many consensual dispute resolution options available such as mediation or Collaborative Practice that can keep you and your family out of court. Ask your attorney if she offers no-court divorce options.  If she doesn’t, then look elsewhere.

Consider Hiring a Divorce Coach

Resist the temptation to use your attorney as a therapist. In Collaborative Practice, mental health professionals assist as members of a team hand-in-glove with attorneys and financial professionals. While not doing therapy, coaches help the parties in a divorce situation deal with the emotions and the divorce stress. EVERYONE can benefit from time with a divorce coach. Even clients, who think they are handling the divorce stress without a coach, are often surprised with how much a mental health professional makes things go more smoothly. If nothing else, learning how to interact with you now estranged spouse and your kids during this difficult time is of huge benefit and can significantly reduce your stress. While divorce coaches are most typically used in Collaborative Practice, I have had a great deal of success incorporating coaches in mediation or even adversarial litigation.

Consider Hiring a Divorce Financial Specialist

Finances can be one of the biggest causes of divorce stress. Resist the temptation to use your attorney as a financial planner. I can tell you, most attorneys went to law school so they wouldn’t have to do math. As such, this is not the person to ask for financial advice. Hiring a Certified Divorce Financial Analyst is a great way to get good financial advice and to find clarity regarding money—even if you were not the spouse who handled the money. There is no reason to suffer in financial ignorance. Financial knowledge is empowering!

a worried woman feeling divorce stressTake care of your body

Most people when they are stressed out first neglect taking care of themselves. When folks get scared or depressed, the temptation is to forget your health. Don’t do that! Besides, exercise is a great way to blow off steam. Join a kick boxing class. Lift weights. Put a punching bag in your bedroom. Also, make sure you are eating well. Eating too little or too much can exacerbate your divorce stress. You need good fuel for your body, mind and spirit.Get into the Spirit of Things. Prayer and mediation can be great ways to center yourself to deal with stress. No matter what your religious background, taking time to be mindful through meditation or prayer can significantly strengthen you. Talk to clergy or a spiritual advisor to find the best way for you to fuel your soul.

sport, box and people concept - young man in gloves boxing with

Forgive your Ex. This is a tough one for many people. But hate can do more to damage the hater than anyone else. So, look for ways to let go of your anger and forgive. Maybe the marriage is over, but holding on to hurt and resentment does little to help you move on. Look forward. Don’t look back! You will find that your load is much lighter.

Beautiful Woman Doing Breath Exercises With An Autumn Background

 

 

Try these steps to reduce divorce stress

These are only a few ideas to reduce your stress during a divorce or legal separation. But if you take even just these tips to heart and implement them in your life, you will find that you will be strong as you go through this difficult time in transition your family. Don’t fret. There is a light to the end of the tunnel!

Other articles related to divorce stress:

Stress, Divorce and Down Dog by San Diego Attorney Win Heiskala

CNBC: Collaborative divorce can ease emotional, economic stress by Deborah Nason

Forgiveness During Divorce: A key to finding peace

Will I be able to keep the house?

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Reducing Reactivity in Divorce

Sometimes a divorce or family law case can be like a perfect storm.  The fissile material of fear, hurt and anger can lead people to make terrible choices as they navigate a very difficult legal process.  This video offers tips on how to reduce reactivity in divorce to help encourage a peaceful, cost-effective and amicable divorce.

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

Conflict between the man and the woman prior to divorce mediation

Peace and harmony are not prerequisites for divorce mediation.

Some people believe that a prerequisite for consensual dispute resolution options like Divorce Mediation or Collaborative Practice is that the parties have to get along or trust each other. That is simply not the case!

A good divorce mediator or collaborative practitioner knows how to get to the heart of the issues even when there is significant conflict. We consensual dispute resolution (CDR) professionals understand that people need our services when there is a dispute to resolve. Conflict is an inherent part of dispute resolution.

CDR professionals are not afraid of conflict.

They have training to get to the heart of what is keeping you from settling. I call these “fault lines”.  A significant part of my work with couples in divorce mediation is taking the time to really listen and understand where the fault lines are and what is causing them. That way I can help.

With divorcing couples, I never just expect things to be easy. After all, you are divorcing for a reason. Surely things up until now have not been all butterflies and rainbows.

My mission is to bring humanity to legal situations to clarify the dynamics of each unique situation in a manner that reveals options for settlement, preserves the long-term interest of the family, and empowers the individual client. I have a profound ability to get into the world my clients are experiencing and feeling to uncover the necessary clarity in each divorce relationship dynamic. From there, I can use my gifts to bring a sense of calm, resolve and hope that could never be reached in adversarial litigation.

So, I take time. I listen – carefully. I try to help bridge the gaps. It’s often quite emotional. It’s only rarely easy. But, if the parties work hard to stretch to find a settlement, I can usually help.

If you are having trouble getting along, don’t let that stop you. There are few cases that must go to court. It’s my job to get you past the conflict and help you find peace for you and your family.