by Shawn Weber, JD, CLS-F | Jul 13, 2017 | Uncategorized
The term “alternative dispute resolution” (or “ADR”) is often used to describe conflict resolution without going to court.
If you find yourself facing a family law matter, you might first ask, “How do I avoid going to court?” Parties can use ADR for any family law issue, whether it’s a divorce, child custody dispute, or support issues. But, there is a lot of confusion about what ADR practice actually entails. Professionals and parties alike often use words like “mediation,” “arbitration,” and “private judging” interchangeably. However, these terms could not be more different.
The main theme of all of these alternative dispute resolution options is that the mediator, arbitrator, or private judge acts as a neutral. They are not there to advocate for or legally advise either party. Rather, they are there to get the parties to a resolution, or settlement. However, the powers and abilities that they have depends entirely on which process you choose.
MEDIATION
Mediation is typically what most people think of when they think of staying out of court and reaching an agreement. A mediator’s job is to help the parties communicate with each other so they reach an agreement themselves. A mediator does not make any orders or decisions for the parties. Rather, a mediator facilitates an effective dialogue between the parties. Sometimes, a mediator might provide legal information about what the law says, but will never provide legal advice to either party. Mediation allows parties to never go to court, because it is a private process outside of court. Mediation is usually the most informal process of these three options.
You can utilize a mediator in a couple different ways:
Mediating with Just the Mediator and No Attorneys in the Room
You can work with the mediator exclusively to settle all of your issues. The mediator has training to help resolve conflicts. She can help you uncover areas where you agree and find solutions for areas where you do not. Because the mediator is a neutral, however, you are wise to consult with an attorney outside of the mediation sessions.
Mediated Settlement Conference with Attorneys Present
If you prefer to have your attorney present, you can schedule a neutral settlement conference with your mediator. The mediator leads the discussion as neutral and your attorneys participate in the discussions. This can be done in lieu of or in addition to litigation depending on the posture of your case. Because your attorney is in the room during the negotiations, you can get your advice in real time during the meeting rather than having to schedule a later appointment with your advising lawyer.
ARBITRATION
Arbitration is similar to a trial at court. However, the arbitrator is the one who makes the decision rather than a public judge. Each side will present their case to the arbitrator. They might use the same procedural tools as a court process might require, such as discovery and evidence. An arbitrator then makes a decision based on each side’s case. Arbitration takes place outside of court, and is usually more relaxed and informal than the courtroom.
Parties might choose arbitration because they want a private, third-party neutral to make a decision for them, but don’t want to set foot inside a courtroom. There are two kinds of arbitration – either binding or non-binding. Binding arbitration means that the arbitrator’s decision is final, and the parties must accept that decision. However, non-binding arbitration means that if the parties disagree with the arbitrator’s decision, they can go back into court to have a judge decide.
PRIVATE JUDGING
Private judging is very similar to arbitration, except a private judge has the ability to make binding court orders the same way a public judge does. With private judging, parties generally go through the same process as litigation. This might include procedures like filing a motion at court, but a private judge would determine the case instead.
A private judge is usually much more accessible than a public judge. This is because private judges are typically experienced family law attorneys, or retired former judges. Their schedules tend to be more flexible than the impacted calendars of current sitting judges. Private judges are also able to devote more focus to one case at a time. With court, a matter may take several months before a court even has time to hear it. Parties might choose private judging if they want to have the structure and formalities of litigation, but don’t want to go through the courtroom or deal with the wait times of the court’s calendar.
There are many different options for conflict resolution. It’s important to know which one suits your personal situation best, as each process has its own pros and cons. It’s a good idea to discuss your options with a knowledgeable family law attorney who is skilled with ADR practice. He or she can help you navigate the intricacies of a family law matter, no matter which process you choose.
by Shawn Weber, JD, CLS-F | Jul 13, 2017 | Uncategorized
The term “alternative dispute resolution” (or “ADR”) is often used to describe conflict resolution without going to court.
If you find yourself facing a family law matter, you might first ask, “How do I avoid going to court?” Parties can use ADR for any family law issue, whether it’s a divorce, child custody dispute, or support issues. But, there is a lot of confusion about what ADR practice actually entails. Professionals and parties alike often use words like “mediation,” “arbitration,” and “private judging” interchangeably. However, these terms could not be more different.
The main theme of all of these alternative dispute resolution options is that the mediator, arbitrator, or private judge acts as a neutral. They are not there to advocate for or legally advise either party. Rather, they are there to get the parties to a resolution, or settlement. However, the powers and abilities that they have depends entirely on which process you choose.
MEDIATION
Mediation is typically what most people think of when they think of staying out of court and reaching an agreement. A mediator’s job is to help the parties communicate with each other so they reach an agreement themselves. A mediator does not make any orders or decisions for the parties. Rather, a mediator facilitates an effective dialogue between the parties. Sometimes, a mediator might provide legal information about what the law says, but will never provide legal advice to either party. Mediation allows parties to never go to court, because it is a private process outside of court. Mediation is usually the most informal process of these three options.
You can utilize a mediator in a couple different ways:
Mediating with Just the Mediator and No Attorneys in the Room
You can work with the mediator exclusively to settle all of your issues. The mediator has training to help resolve conflicts. She can help you uncover areas where you agree and find solutions for areas where you do not. Because the mediator is a neutral, however, you are wise to consult with an attorney outside of the mediation sessions.
Mediated Settlement Conference with Attorneys Present
If you prefer to have your attorney present, you can schedule a neutral settlement conference with your mediator. The mediator leads the discussion as neutral and your attorneys participate in the discussions. This can be done in lieu of or in addition to litigation depending on the posture of your case. Because your attorney is in the room during the negotiations, you can get your advice in real time during the meeting rather than having to schedule a later appointment with your advising lawyer.
ARBITRATION
Arbitration is similar to a trial at court. However, the arbitrator is the one who makes the decision rather than a public judge. Each side will present their case to the arbitrator. They might use the same procedural tools as a court process might require, such as discovery and evidence. An arbitrator then makes a decision based on each side’s case. Arbitration takes place outside of court, and is usually more relaxed and informal than the courtroom.
Parties might choose arbitration because they want a private, third-party neutral to make a decision for them, but don’t want to set foot inside a courtroom. There are two kinds of arbitration – either binding or non-binding. Binding arbitration means that the arbitrator’s decision is final, and the parties must accept that decision. However, non-binding arbitration means that if the parties disagree with the arbitrator’s decision, they can go back into court to have a judge decide.
PRIVATE JUDGING
Private judging is very similar to arbitration, except a private judge has the ability to make binding court orders the same way a public judge does. With private judging, parties generally go through the same process as litigation. This might include procedures like filing a motion at court, but a private judge would determine the case instead.
A private judge is usually much more accessible than a public judge. This is because private judges are typically experienced family law attorneys, or retired former judges. Their schedules tend to be more flexible than the impacted calendars of current sitting judges. Private judges are also able to devote more focus to one case at a time. With court, a matter may take several months before a court even has time to hear it. Parties might choose private judging if they want to have the structure and formalities of litigation, but don’t want to go through the courtroom or deal with the wait times of the court’s calendar.
There are many different options for conflict resolution. It’s important to know which one suits your personal situation best, as each process has its own pros and cons. It’s a good idea to discuss your options with a knowledgeable family law attorney who is skilled with ADR practice. He or she can help you navigate the intricacies of a family law matter, no matter which process you choose.
by Shawn Weber, JD, CLS-F | Apr 1, 2017 | Uncategorized
What’s the difference between a divorce and an annulment?
I often have a potential client call me and say that he or she wants a marriage annulment. Often the request is based on confusion about the differences between an annulment and a divorce. The differences are profound and I will attempt to lay them out here.
Dissolution of Marriage
First, a divorce is a dissolution of a marriage. In other words, we take a marriage that existed and terminate it. We speak in terms of “length of the marriage” being the period between the date of marriage and the date of separation. To get a divorce in California, a person must have lived within the State of California for six months and the county of residence for at least three months before filing. There is also a six-month waiting period from when the Petition for Dissolution of Marriage is served before the divorce can be granted. With divorce come the issues of spousal support (or alimony) and division of community property.
Annulment
In contrast, if the court grants an annulment (or nullity), it is as if the marriage never existed. Crucially, a person does not need to meet the residency requirements. There is no six-month waiting period before the annulment is granted. Because the marriage never technically existed, issues of spousal support and community property typically (with some exceptions that I won’t get into here) fall by the wayside.
There are strict requirements for getting an annulment in California.
To get an annulment in California, the Court requires that there are specific “grounds”. The available grounds for a nullity are:
- The marriage was incestuous. (Cal. Fam. § 2200);
- The marriage was bigamous (Cal. Fam. § 2201);
- One of the parties was below the age of consent at the time of marriage (Cal. Fam. §2210(a));
- One of the parties had a prior existing marriage to another person believed to be dead, but isn’t (Cal. Fam. §2210(b));
- A party was of unsound mind at the time of marriage (Cal. Fam. §2210(c));
- A party obtained the consent marry by fraud (Cal. Fam. §2210(d);
- A party obtained the consent to marry by force (Cal. Fam. §2210(e); or
- Either party was, at the time of marriage, physically incapable of entering into the marriage state, and that incapacity continues and appears to be incurable. (Cal. Fam. §2210(f)).
A party seeking an annulment must prove that one of the above grounds is met. Otherwise, the court won’t grant the nullity and the party will need to seek a divorce.
Read More:
My Appearance on “Smarter San Diego” to Talk About Divorce Mediation
Forgiveness During Divorce: A key to finding peace
How much does it cost to go to divorce mediation?
by Shawn Weber, JD, CLS-F | Mar 21, 2017 | Uncategorized
In my divorce mediation career, I’ve learned over the years that people approach divorce from different places. Sometimes people want the divorce very badly and are happy to get started. Others are devastated by the breakup.
It’s not uncommon for a couple in the process of their separation to move at different speeds. One party may be ready to move quickly while the other spouse may be having a terrible time and may need to move more slowly. In my experience, the divorce mediation will only move as quickly as the slowest person. That can be very frustrating to the spouse who wants it over with. My best advice is to take your time and give the other person the time and space he or she needs.
Divorce can feel like a death.
In her seminal work, on Death and Dying, Dr. Elisabeth Kübler-Ross describes the “Five Stages of Grief”. They are Denial, Anger, Bargaining, Depression and Acceptance. Divorce professionals have learned to spot these very same stages and patterns when people face the loss of their marriage during a divorce. (See The Emotional Stages of Divorce: What to Expect During and After the Divorce ProcessThe Emotional Stages of Divorce: What to Expect During and After the Divorce Process) We’ve learned that people are unable to effectively deal with the present issues of the divorce without reaching the point of acceptance that the divorce is happening. But to get to acceptance, people first need to travel through the other four grief stages. That can take some time. If you’ve sat with your decision to divorce for awhile before breaking it to your spouse, it is likely that you went through the five stages of grief on your own before reaching your own point of acceptance. Your spouse, who may be just learning of your intention to divorce is late to the grief cycle. You’ll need to afford him or her some patience and time to work through it.
If you’ve been sitting with your decision to divorce for awhile before breaking it to your spouse, it is likely that you went through the five stages of grief on your own before reaching your own point of acceptance. Your spouse, who may be just learning of your intention to divorce is late to the grief cycle. You’ll need to afford him or her some patience and time to work through it.
Forcing a person to complete a divorce case before completing the grief process can be problematic.
First, a rushed agreement is rarely followed.
The person who is rushed will resent the process and will likely make efforts to undermine or to revise the agreement. Worse, a party who agreed under duress would have grounds to set aside the settlement altogether. It is better to take the time to get the settlement right so that there is buy-in from both parties.
Second, pushing the slower party often has the opposite of the intended effect.
If you own a dog, you may very well know the behavior that happens when you try to pull on a dog’s leash. The dog will tug in the opposite direction or may even stubbornly stop moving or sit down. In divorce mediation, trying to rush a party often has the same effect. The slower spouse who is rushed may even slow down more.
Third, not allowing the slower spouse room to accept and deal emotionally with the divorce mediation process can lead the pushed spouse to choose more aggressive and expense processes such as divorce litigation.
Trust me, the wheels of justice at court will turn even slower. So it’s best to work with your spouse to try to reach consensus. But if that consensus doesn’t come overnight, it’s not the end of the world. Letting your spouse have the time in a safe space to deliberate, review financials and consult with a lawyer is best even for the faster spouse because pushing a person too hard can lead to a much slower court process.
In Divorce Mediation, Slower is Faster.
So be patient and compassionate towards your soon-to-be ex. Let him or her have time to deal with the emotional pain of the breakup. Don’t push so hard that he or she slows down or worse, chooses to litigate. Sometimes slower is, in fact, faster.
See also these related posts:
Can I Be Divorced Yesterday? Or is Slower Faster? by Shawn Skillin, Esq.
We don’t get along very well. How can we possibly mediate our divorce?
Five Tips to Have a Miserable Divorce
Human Side of Divorcing
by Shawn Weber, JD, CLS-F | Aug 26, 2016 | Uncategorized
Not 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:
https://weberdisputeresolution.com/divorce-mediation-cost/
https://weberdisputeresolution.com/mediation-divorce-complicated-financial-issues/
