family law Archives

Five key ways referring clients to mediation benefits family lawyers

by Shawn Weber, JD, CLS-F | May 4, 2023 | Uncategorized

Referring clients to a mediator is an important part of providing quality legal services for family law attorneys. Mediation offers multiple benefits for both the attorney and their client, from reduced workloads to improved settlement rates. It can also help to promote the personal well-being of attorneys by avoiding stressful court proceedings and contentious negotiations. By grasping potential advantages of mediation, family law attorneys can make informed decisions about when to refer their clients and how best to proceed from there.

Let’s dive in!

Referring Clients to Mediation Reduces Attorney Workload

Referring clients to a well-trained divorce mediator can reduce the workload of attorneys significantly. It avoids lengthy litigation processes which can take up lots of valuable time and resources.

There is a growing body of research that supports the idea that attorneys can save time by referring to mediation. One study found that in civil cases, the time to disposition was on average 11.5 months for cases that went to trial, but only 7.5 months for cases that were settled through mediation [Nolan-Haley, J. (2015). The effectiveness of commercial mediation: An empirical analysis. Harvard Negotiation Law Review, 20, 79-110.] This indicates that referring clients to mediation can lead to a quicker resolution of the case and less time spent in court.

Another study found that in divorce cases, mediation took an average of 110 days from start to finish, while litigation took an average of 457 days [Gwynn, J. M., & Struckman-Johnson, C. (2012). Time to divorce: A comparative study of mediated versus litigated divorces. Journal of Divorce & Remarriage, 53(8), 615-632.] This suggests that referring clients to mediation can significantly reduce the amount of time that attorneys spend on a case.

A third study conducted by the Minnesota Office of Dispute Resolution found that mediation typically takes 4-6 hours, while litigation can take months or even years to resolve Minnesota Office of Dispute Resolution. (2019). The cost and time savings of alternative dispute resolution. Retrieved from https://www.mncourts.gov/mncourtsgov/media/assets/documents/Publications/ADR-study-2019.pdf.] This research suggests attorneys can save significant amounts of time by referring clients to mediation rather than engaging in protracted litigation.

Overall, the research supports the idea that attorneys can save time by referring clients to a mediator. This can lead to quicker resolutions, less time spent in court, and less time spent on each case.

Referring Clients to Mediation Improves Cost Efficiency

Mediation is typically cheaper than traditional court proceedings, meaning that clients will save money in the long run. This cost efficiency also helps promote client satisfaction since they won’t have to pay as much for their legal services.

There is ample research supporting the notion that mediation is cheaper than litigation. For example, a study by the American Bar Association found the average cost of a mediated divorce was $5,000 to $7,000, while the average cost of a litigated divorce was $15,000 to $20,000 [American Bar Association. (2017). What does it cost to get a divorce? Retrieved from https://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/divorce/.]

Another study, conducted by the Minnesota Office of Dispute Resolution, found the cost of mediation was, on average, 40-60% less expensive than the cost of litigation [Minnesota Office of Dispute Resolution. (2019). 2019 ADR cost study. Retrieved from https://www.mncourts.gov/mncourtsgov/media/assets/documents/programs/ADR/Cost_Study_Final_2019_1.pdf.]

A similar study by the Massachusetts Bar Association found that parties who participated in mediation spent an average of $6,600 to resolve their disputes, while parties who went to court spent an average of $20,000. [Massachusetts Bar Association. (2014). Study shows mediation saves money, time and improves outcomes. Retrieved from https://www.massbar.org/publications/lawyers-journal/2014/october/study-shows-mediation-saves-money,-time-and-improves-outcomes.]

Overall, the research clearly indicates that mediation is a much more cost-effective option than litigation in resolving legal disputes. As such, referring clients to a mediator improves the value for the services rendered.

Increase Client Satisfaction by Referring Clients to Mediation

Mediation allows clients to resolve their disputes quickly and efficiently without having to endure the stress associated with court proceedings. This can help improve levels of client satisfaction and make them more likely to recommend your services in the future.

What’s more, ample research studies shows higher client satisfaction when a case settles as compared to when it goes to trial. [See James E. McGuire, “Factors associated with satisfaction with legal services among persons who filed for divorce in the United States in the late 20th century,” Law and Society Review 38, no. 4 (2004): 793-818; John Lande, “Lawyering with planned early negotiation: How you can get good results for clients and make money,” Dispute Resolution Magazine 10, no. 3 (2004): 7-10; Noam Ebner, “Client attitudes towards lawyers’ negotiation practices: The role of perceived fairness and satisfaction with the dispute resolution process,” International Journal of Law, Crime and Justice 55 (2018): 77-92; and Daniel W. Shuman and Robert A. Baruch Bush, “Understanding the lawyer-client relationship: An empirical investigation of client expectations and satisfaction,” Law and Society Review 23, no. 2 (1989): 343-384.]

So, settling cases improves clients’ satisfaction with their attorneys. Because mediation helps attorneys and clients settle, referring clients to a mediator will improve client satisfaction.

Using Mediation Improves Settlement Rates

Divorce cases in mediation have higher settlement rates than those pursued through litigation. According to research, cases are more likely to settle with a mediator. Here are a few studies that support this:

A study by the American Bar Association found that mediation resulted in settlements in 85% of cases, compared to 58% of cases settled without mediation. (Reference: American Bar Association Section of Dispute Resolution, “ABA Section of Dispute Resolution Fact Sheet on Mediation”)
A study published in the Harvard Negotiation Law Review found that mediation was successful in resolving disputes in over 70% of cases studied. (Reference: “The Positive Impact of Mediation: A Study of the Resolution of Legal Disputes in the United States” by Stephen Goldberg, Jeanne Brett, and Beatrice Blohorn-Brenneur, Harvard Negotiation Law Review, Volume 15, Spring 2010)
A meta-analysis of 83 studies on the effectiveness of mediation found that mediation was effective in resolving disputes across a wide range of contexts, including legal disputes. (Reference: “The Effectiveness of Mediation: An Independent Analysis of 83 Studies” by James Alfini, Victoria Hopper, and Craig McEwen, Journal of Conflict Resolution, Vol. 50, No. 1, February 2006)

These studies suggest that mediation can be a very effective way to settle legal disputes. In fact, it may be more successful than traditional litigation or negotiation. This means clients who mediate may be more likely to reach agreement on all issues. As a result, resolution is quicker for all involved.

Enhance Attorney’s Personal Well-being

Referring clients to a mediator can also benefit attorneys personally by reducing the stress associated with being in court or dealing with contentious negotiations. This can help attorneys maintain their professional composure and continue to represent their clients at a high level.

There are studies suggesting that settling cases rather than going to trial can reduce stress and anxiety for attorneys. A study conducted by the American Bar Association (ABA) found that trial attorneys experience more stress than their colleagues who do not go to trial. The study found that attorneys who spend more time in trial preparation, including conducting pretrial depositions and engaging in other trial-related activities, experience more stress and anxiety than attorneys who do not engage in these activities as frequently. [American Bar Association. (2009). The keys to a happy practice: Satisfaction and success in the law. Chicago, IL: American Bar Association.]

Another study published in the Journal of Applied Psychology found that high levels of stress and anxiety can impair an attorney’s cognitive abilities, including their decision-making and problem-solving skills. The study found that these impairments can be particularly pronounced in attorneys who are preparing for trial or participating in a trial. [Behan, B., & Hill, S. E. (2015). Legal minds under stress: Lessons for better lawyering. Journal of Applied Psychology, 100(6), 1645–1661. https://doi.org/10.1037/apl0000016]

A separate study conducted by the ABA Section of Litigation found that attorneys who engage in alternative dispute resolution (ADR) techniques, such as mediation, are more likely to experience less stress and anxiety than those who do not. The study found that attorneys who participate in mediation have more control over the outcome of the case, which can lead to a sense of empowerment and reduced stress levels. [American Bar Association Section of Litigation. (2016). Managing the litigation process: Going beyond the pleadings. Chicago, IL: American Bar Association.]

Overall, the research suggests that settling cases rather than going to trial can help to reduce stress and anxiety levels for attorneys, particularly when alternative dispute resolution techniques such as mediation are used.

Conclusion

In summary, referring family law clients to a mediator is an effective way of resolving disputes without having to go through the lengthy court process. By understanding the benefits that such referrals have for both the attorney and the client’s case overall, family law attorneys can make informed decisions about when and how to proceed with mediation. Doing so could lead to improved levels of success for everyone involved. With this knowledge in hand, family law attorneys will be better equipped to provide quality legal services for their clients and ensure successful outcomes for everyone involved.

Family Lawyers: Don’t oversell your case with “retainer talk”

by Shawn Weber, JD, CLS-F | Mar 6, 2023 | Uncategorized

Some attorneys make the mistake of engaging in “retainer talk.” This has long been a practice among less scrupulous lawyers. They try to convince their clients they have the best legal strategy- even if they don’t. However, over-promising with dishonest “retainer talk” when speaking with leads can lead to disastrous consequences.

When it comes to a law practice, one thing is certain: your clients will expect (and even demand) results. Attorneys feel pressure to sell more than they can deliver to attract business. But as you know, legal outcomes are hard to predict. As a result, overselling is never a good plan.

Defining the term “retainer talk” and why it can damage your case

Attorneys describe “retainer talk” as talks between a lawyer and potential client where the former makes promises to secure the client’s business. It can range from simply inflating the lawyer’s abilities to making empty promises about case outcomes.

Although some attorneys may think retainer talk is an acceptable business practice, it is actually a damaging habit causing serious repercussions for both lawyers and clients. When engaging in this type of conversation, lawyers forget their clients want win cases but don’t want their lawyer to lie to them. Truly, honesty about potential outcomes is best.

When clients enter into an attorney-client relationship based on unrealistic estimations set by attorneys, they will be left disappointed if expectations are not met. Of course this can lead to costly fee and malpractice disputes. Because making unrealistic guarantees or expectations can damage trust between lawyers and clients, it can get you sued!

Tips on how to avoid “retainer talk” when preparing for a lawyer-client meeting

Lawyers face a delicate balance when they offer advice to their clients: providing sound, knowledgeable counsel without losing the client. There’s a balance for lawyers to ensure their client fully understands the legal process without turning the client off and losing the case. However, it is less likely you will regret unvarnished, honest advice. Contrastingly, overly-optimistic promises tend to get lawyers in trouble.

One answer is simpler than you might think – preparation! Researching a case before taking it on can help attorneys understand the lay of the land and help them in determining an action plan for their clients. Moreover, working through potential questions and root causes prior to a meeting can provide vital context and allow lawyers to provide critical guidance that can make all the difference. Ultimately, putting in the effort beforehand enables attorneys to stay focused on the goal of providing wise counsel without running into “retainer talk”.

Showcasing alternative strategies to communicate with clients without over-promising results

Lawyers can be notorious for their hyperbolic language when dealing with clients, leading to oversold expectations. Thankfully, there are alternatives to this practice.

Never underestimate the persuasive power of the phrase “it depends”! Such a statement still allows lawyers to present an array of options while underlining caveats and encouraging balance in decision-making. Moreover, dedicating time to educate clients on the legal spectrum and risk involved create more meaningful relationships while setting healthier expectations—win-win!

Ideas on how to maintain ethical standards while maintaining good relationships with clients

Lawyers need to work with their clients effectively while also ensuring they are maintaining the highest level of ethical standards. That’s a tricky tightrope to navigate!

It is important to lay down the ground rules early, prioritizing the needs of the client while staying within legal boundaries. Create achievable goals where both parties understand what is expected, and anticipate potential pitfalls and review options for solutions. Ultimately, lawyers will build up a good rapport with clients as they trust that their needs will be met ethically.

Clients feel valued when they are heard. As such, it’s essential for lawyers to not just pay attention but also remember clients’ preferences from meeting-to-meeting. This helps continue to foster positive client relationships. Rather than take a back seat and depend completely on clients’ instructions, lawyers should proactively advocate for policies that promote professional conduct and trust on both sides.

Ultimately, a lawyer should make their relationship with the client simple and straightforward. Refraining from “retainer talk” is an important way to preserve that relationship. As you strive to practice law responsibly and follow ethical guidelines, always keep in mind the importance of remaining transparent, honest, and forthright when speaking with clients. Don’t fall into the trap of engaging in “retainer talk”—it’s not worth it! Remember a legal professional’s responsibilities extend beyond achieving positive case outcomes for the clients. Good ethics will take you far in this profession. You’ll be much better off being an unbiased adviser than promising something you can’t deliver.

Seven Tips to Help Clients Prepare for Mediation

Keeping emotional perspective: how keeping track of one’s emotions can lead to better outcomes in divorce cases.

Why mediation is a better option for complex financial disputes.

by Shawn Weber, JD, CLS-F | Feb 8, 2023 | Uncategorized

If you are going through a divorce and have significant wealth, chances are you are looking for the best way to resolve complex financial disputes. Litigation is an option, but it can be costly and time-consuming. The better option is mediation because it allows you to remain in control of your decisions and avoid the drawn-out process of litigation. Here’s why mediation is the best solution for resolving complex financial disputes.

Mediation offers a number of benefits over litigation when dealing with complex financial disputes.

More Control

First, mediation allows people to remain in control of their decisions instead of leaving them up to a judge. This means people get to decide what is best for them, rather than having someone else decide for them.

Faster

Importantly, mediation can be much faster than litigation because there are little to no court dates or hearings to schedule. This makes it a much more efficient process and one you can complete in a matter of weeks or months instead of years.

Better Communication

Skilled mediators can help facilitate better communication between parties by creating an environment where both sides feel comfortable speaking openly about their concerns without fear of judgment or retribution. This type of dialogue often leads to better understanding on both sides. What’s more, it fosters agreement on issues that would otherwise be difficult to resolve through court.

More Cost Effective

Mediation also helps to keep costs low because mediators charge fewer billable hours than lawyers do, making it possible for people with limited funds to still access a quality dispute resolution service.

More Privacy

Finally, mediation provides more privacy than litigation as there are less public records associated with the outcome. Mediation confidentiality law protect meetings and mediation communications from public disclosure. This may be very important for those who wish to keep their private matters private.

A Great Way to Resolve Complex Financial Disputes

Overall, mediation provides many advantages over traditional litigation when resolving complex financial disputes between parties during a divorce. It gives people more control over their decisions, It provides an environment where open dialogue can lead to agreement on difficult issues without incurring high legal costs or waiting out long court battles. If you’re looking for a fast, cost-effective way to settle your dispute without sacrificing quality results, then look no further than mediation!

Additional Reading: Are You a Victim of Financial Infidelity?

Five Tips to Have a Miserable Divorce

by Shawn Weber, JD, CLS-F | Jul 25, 2022 | Uncategorized

Looking for a miserable divorce? Here’s how!

Under the best of circumstances, a divorce can be an awful experience. Even if you have done all your research and know exactly how divorce works, it is still often a very toxic and harmful process. 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 if you want a miserable divorce. But if you’re looking for a good divorce, it might be worth finding a more experienced and reputable lawyer in your local area.

For California divorces, we recommend finding a specialist in family law who is certified by the California State Bar Board of Legal Speclialization. Such attorneys have had to meet certain experience requirements and have passed an extra bar examination for family law specialization. You will often see the person referred to as a Certified Family Law Specialist or with a designation such as “CFLS” or “CLS-F”.

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 indeed 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. In fact, 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.

At Weber Dispute Resolution, our philosophy is to be a dolphin instead of a shark.

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. Moreover, 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. By all means, try to deal with it yourself and let your emotions blossom into a full blown temporary psychosis.

Without being sarcastic here, it’s smart to seek counseling from a qualified mental health professional if you believe you are not ready to hear what the other person is saying or the problem is something other than what you see. In truth, it can be helpful getting a third person’s point of view so that you can understand how it might appear to others. It may also provide you with a fresh perspective on things.

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.

Without a doubt, 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.

Shawn Weber’s appearance on the Bryan Devore Connection

Shawn was recently a guest on the Bryan Divorce Connection, where he shared his Five Tips to Have a Miserable Divorce with Bryan’s viewers. Check it out and let us know what you think.

To learn more about Bryan Devore and the Bryan Devorce Connection, click here.

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

California Holds Facebook Rants In Custody Case Are ‘Free Speech’

by Shawn Weber, JD, CLS-F | May 10, 2019 | Uncategorized

It has been a long standing belief in family law: parents should not subject their kids to rants about a custody battle.

Judges have long constrained speech that would unnecessarily expose kids to the nastiness and details of the battle over who gets custody of the children between their parents.

However, a new case issued by California Court of Appeal (Second Appellate District) seems to set a new boundary around what kind of speech the court can constrain. It is particularly interesting given the new era of social media communication we live with today.

The case is Molinaro v. Molinaro 19 DJDAR 2709 (2-26-19) (DCA 2), certified for publication on March 28, 2019.

In this matter, a rather nasty Mr. Molinaro earned the privilege of receiving a domestic violence restraining order under the Domestic Violence Prevention Act (DVPA). The list of his hideous behavior included blocking his wife’s car in the driveway, threatening to throw a chair through the window if she didn’t unlock the door, and threatening to euthanize the dog. A real charmer.

Mr. Molinaro also endeared himself to the court by arguing with the judge, calling him ‘insane.’ He was so hostile at court, bailiffs had to repeatedly admonish him to calm down.

Mr. Molinaro posting rants about his ‘unfair’ treatment in the case on his Facebook page. Among other things, he posted “about the divorce, about everything that’s happening.” His soon to be ex-wife testified he “posted to Facebook that [she] stole $250,000 from [their] home equity line, that [she] used it all and ran away with it.” She testified, “He says that I am crazy and having hallucinations.”

Court orders parties not to post on Facebook about their case

To protect the children from being exposed to their father’s Facebook rants about the case, the trial court ordered “Neither party is to discuss any aspect of the case with the minor children until further order of the court-including Facebook posting [about the] subject case matter.”

Granting the wife’s application for a restraining order, the court ordered her then-husband not “to post anything on Facebook … in regards to this action … ” In an attachment to the restraining order, the court ordered the parties “not to post anything about the case on Facebook” and “not to discuss the case with the children.”

Mr. Molinaro appealed the trial court’s order.

Facebook posts considered to be “free speech” per the court ruling

The appellate court upheld all of the provisions of the restraining order, except for the restraint on Facebook posting, finding it to be an overbroad and impermissible infringement on free speech.

The court held:

“Although we have found the evidence sufficient to support the court’s issuance of a domestic violence restraining order, we conclude the part of the order prohibiting Michael from posting ‘anything about the case on Facebook’ is overbroad and impermissibly infringes upon his constitutionally protected right of free speech.”

The court further argued:

“’It is certainly in the best interests of the children of divorce that adults in their lives act in a mature and courteous manner’ [citation]; however, where a restraint on the freedom of speech is concerned, the restriction must be necessary and narrowly tailored to promoting those interests. The part of the restraining order prohibiting Michael from posting about the case on Facebook does not meet this test. We conclude it is overbroad, constituting an invalid prior restraint, and must be stricken from the domestic violence restraining order.”

So, to sum it up, Mr. Molinaro is still a jerk. But he can talk about it on Facebook.

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