Mediation Versus Arbitration

Posted on January 1, 2012 by admin

From the many calls I receive inquiring about my divorce mediation services, I believe many people are not really sure of what mediation really is. They may have heard of mediation but cannot quite distinguish one type of alternative dispute resolution (ADR) from another. In the civil courts, arbitration is the form of ADR most commonly offered. So then, just what is the difference between arbitration and mediation? In arbitration, the parties and their attorneys will essentially try their case before an arbitrator, who is often a retired judge. Evidence and arguments are presented just as they are in a regular case, but the trier of fact is the arbitrator instead of a jury. Lawyers often agree to non-binding arbitration as a form of alternative dispute resolution in order to try to predict how their case will go in court. It is a chance to see how a judge will look at their case.
An arbitrator will weigh evidence and hear argument and make findings of fact and a ruling. A mediator does not do that. A mediator helps people negotiate with each other to resolve their points of disagreement. The process is much more informal than what happens in a courtroom. In mediation, the parties meet with a neutral party (an attorney trained in mediation techniques) who will help them identify their divorce issues and who will facilitate the negotiations between the parties to reach a compromise of their issues. The mediator does not act as judge or jury, but only serves to help the parties resolve their issues privately without the stress and formality of the court process. If an arbitrator may be considered a private judge, then a mediator might be considered as more of a counselor who will listen to the parties and help them listen to each other.

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Mediation for High Conflict Divorce

Posted on April 14, 2011 by admin

While the very thought of high conflict couples brings visions of custody battles and long drawn out divorces, divorce mediation may still be an option for so-called “high conflict” couples.  Granted, there is a greater likelihood of mediation breaking down prematurely.  However, a skilled and experienced mediator may still be able to help the high conflict couple resolve their divorce issues.   Sometimes the issues are so charged or the personal conflict so high that the couples cannot sit in the same room as each other.  Still, communication can be facilitated by the mediator through a technique known as “caucusing” where the mediator meets with the parties separately to discuss each party’s position and proposals for the other party.  The mediator is something of a “go-between” with this technique but still uses his or her skills to help the parties frame the issues and focus on resolutions rather than hurt feelings or past transgressions.  The adage, “out of sight, out of mind” does have some truth in such cases, as not seeing the other party can help people stay focused on the relevant issues and not the feelings associated with the other party.

Even if negotiations break down at some point in a high conflict divorce mediation, there is a good chance that some progress has been made toward resolving key areas of disagreement that subsequent litigation may reduced and some of the hotter points of contention cooled a bit.

Mediators are adept at helping each party see the contested issues from the other party’s perspective in order to facilitate compromise.  To the extent the parties are able to  listen and understand each others’ concerns, the larger conflict may even deescalate.

High conflict couples are the least likely to try mediation, but arguably have the most to gain from the experience.  Whatever brought the parties to their current elevated hostility is only likely to get worse with a contentious courtroom battle, and the grudges created and wounds received from that battle can last years and poison any future dealings between the parties.  Mediation can be an opportunity to stop adding insults to the injuries already sustained and allow the parties to move on with their lives.

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Mediated Prenuptial Agreements

Posted on April 7, 2011 by admin

While most family law mediation firms emphasize mediating family law issues after a divorce, there really is no reason why the same issues (usually property and support)  cannot be mediated before the marriage.

Many people desire to have a prenuptial agreement in place before they get married.  They may be people who have acquired a high net worth when they were single or they may have significant assets they want to preserve for their children or they just may want to have a plan in place on the remote chance the marriage will fail.  Whatever the reason a person may have for wanting a prenuptial agreement, it is something that should not be sprung on one’s prospective spouse on the eve of marriage.  Indeed, such a tactic may be counterproductive because of the potential for causing duress on the other spouse (which may undermine the validity of the document).

If you are considering having a prenuptial agreement before entering into marriage, a better approach would be a mediated prenuptial agreement.  With a mediated prenup the parties can fully participate in the negotiation process, can make full and fair disclosures, and grant each other the leisure to consult with an outside expert, such as an attorney, prior to finalizing the agreement.

California prenuptial agreements have very strict statutory rules that favor full and fair disclosure, active negotiation of the agreement, and sufficient time to reflect upon the prenuptial agreement.  A mediated prenuptial agreement should generally observe these principles and help the marrying parties plan for any future contingencies.

Derrick J. Taberski is an experience family law attorney and mediator.  If you are interested in mediating a prenuptial agreement he would be happy to assist you.

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Mediating Child Custody and Visitation Issues

Posted on March 22, 2011 by admin

Mediation is ideally suited to resolving child custody and visitation issues.  Simply speaking, custody and visitation is not a “one size fits all” issue where a “standard” schedule works best for all concerned.  As the needs and circumstances of each child is unique, so to are the solutions for building a custody and visitation schedule that will be ideally suited to the best interests of the children while giving a nod toward the practical realities of modern parenting.

While tensions can get high during a custody mediation session, it always helps to keep the interests of the children the focus of the discussion, and not the emotions or egos of the parties.  With both parents working together, it is possible to resolve issues of custody and visitation to enable children to maintain and grow their bond with both parents.

The best interest of the children are not served by parents inflexibly taking a position for example based solely upon a preconceived notion of how much timeshare a parent wants.  Many parents, fathers especially, are concerned with paying a larger amount of child support if they do not have their “50%” timeshare and may focus inflexibly on that number rather than what is truly in the best interests of the child.  Perhaps the party wanting “50%” works very late on weeknights and the child will be a “latchkey kid” or spend an extraordinary amount of time with a daycare provider rather than with the parent.  What good is it to have time with a child for the sake of timeshare but not spend quality time with him or her?  Parents keeping the best interests of the children in mind may come up with a  custody and visitation arrangement that allows more weekend time for a parent who works very late on weekdays, even though the timeshare is not “50/50.”  In reciprocation, the party receiving child support may accept a lower than guideline support order, or may be more flexible with granting the other parent unscheduled weekday visits.

While numbers and timeshares are important for establishing a suitable amount of support, parties should not be driven by an inflexible attachment to them.  The negotiation process involves compromise and a willingness to give and take.  One party may give on one front only to receive more on another front.  In the end, what is in the best interests of the children is the custody and visitation schedule that the parents should settle on.

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How Long Is Spousal Support Due

Posted on March 21, 2011 by admin

In California the rule of thumb is that spousal support is due for one-half the duration of the marriage.  That rule of thumb applies for short term marriages under ten years.  In long term marriages, the general rule is that support is due “indefinitely.”  Each case is unique and if the court decides to terminate spousal support, it will have to analyze all of the relevant facts and circumstances of the parties.  The support obligation also will cease when the supported spouse remarries or when either party dies.

When parties mediate their divorce settlement, they may choose to voluntarily waive support, limit support to a certain amount and duration, buy out support, or come up with any other arrangement they mutually agree to.

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How Long Is Child Support Due

Posted on March 21, 2011 by admin

Child support is generally due until the child in question marries, becomes emancipated, dies, turns 18 and is no longer a full time high school student, or turns 19, whichever occurs first. Many high school students are age 18 when they graduate, so support would be owing until they graduate. The occasional child will still have not completed high school when he or she turns 19 and regardless of whether the child finishes high school, support will cease to be due when the child turns 19. Many parents continue to support their children through college, but there is no state mandate that a divorced parent has to support a college student.

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Dividing Complex Marital Assets in Mediation

Posted on March 20, 2011 by admin

Mediation involves a certain degree of trust between the parties. They have to have confidence in the fact that each party is laying all of their cards on the table and is complying with the financial disclosure requirements of Family Code 2104 and of course their fiduciary obligations under Feldman. In the case of complex assets, such as a community property (or mixed property) business, it is often difficult to establish an accurate value. One party may be in charge of the business and know the operations intimately while the other party may not be involved and would not be in a position to evaluate the accuracy of any value placed upon the business by the “in” spouse. A party may not be intentionally misleading the other, but simply not be technically able to give an accurate value. It is generally pointless for the parties to just “throw out” numbers and hope to agree. In these situations, it is advisable to retain the services of an expert, such as a CPA to value the community portion of the business (and generally it is not done by the accountant who is on payroll). In this way the parties do not need to rely on each other’s representations of value, but rather those of the (neutral) third party to get an accurate measure of value and cash flow. This information will help them to settle issues of community property division and support with eyes wide open.

Mediation is often conducted just between the parties and their mediator, but in situations like the above, sometimes the accountant can join the mediation sessions as an informational resource to give the parties a valuation report and be available to answer questions. Mediation at this point may resemble collaborative law, but it differs in that the parties are agreeing to retain one expert and each party does not have a separate expert.

Some practitioners argue that division of complex assets is better left to litigation, but with the right resources (i.e., experts) even resolution of a complex matter can be accomplished through mediation.

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Why Divorce Mediation Is Becoming More Popular

Posted on March 19, 2011 by admin

When I went to law school over ten years ago, alternative dispute resolution was the buzzword going around.  Mediation was one of the forms of alternative dispute resolution that was touted.  It met with mild interest from the students and is generally received the same among practicing lawyers.  After all, they are in the business of litigating, spent many years in law school and in practice learning how to litigate, and are personally vested in the litigation process because they more they litigate the more money they make.

Perhaps in areas of law other than family law, that mind set is fine.  If you have a class action suit trying to get some nameless corporation to compensate a group of people for damages they suffered and some other faceless insurance company is there to pay out the claims anyway, why not litigate they heck out of it?  There is nothing to lose from the plaintiffs’ side of things and the defendant has everything to gain by not having to pay (that’s why the insurance company generally defends – they’re the ones holding the bag).  But in a family law situation community property and the spouses’ incomes are the sources used to fund litigation.  High litigation costs only damage the parties by burning up community property and using up current incomes that might better be spent on the parties’ children.  The losers are the parties themselves and their children.  It is in everyone’s self-interest to try to minimize the costs of divorce and conserve resources for the parties and their families.  Many people are finally realizing that a litigated divorce means literally giving a portion of the parties’ property and handing it over to a couple of strangers.  That is one main reason why mediation is becoming more popular.  For basically one-half of what you might pay just one lawyer as an initial retainer, you can resolve your divorce and equitably divide community property between the parties (that’s a two-way division) and not between the parties and their lawyers (a four-way division).

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If I Try Divorce Mediation Can I Later Change My Mind?

Posted on March 19, 2011 by admin

People try divorce mediation for a number of reasons.  One important reason is that they want to stay focused on what is best for their children.  Another reason is that they want to save on the costs of their divorce.  People who want to mediate their divorce are committed to these and other important goals.  However, mediation sometimes does break down.  For whatever reason, the parties cannot come up with a reasonable compromise on one or more issues, and they cannot benefit from further attempts at negotiation.  In such situations, people may find their own lawyers and continue their divorce through litigation.  They will have benefited from the mediation process because those issues that they were able to resolve should be set forth in a stipulation for judgment or other such agreement.  They still will have saved divorce costs because their lawyers would have very few if any issues to litigate.  Fewer issues at trial means less attorney time spent resolving them.  So you can certainly try mediation.  If one or both parties decide to litigate, they can simply withdraw from mediation, retain a lawyer, and begin the litigation process by filing the appropriate documents in court.  There is no stigma for having failed to negotiate an amicable divorce, and at least the parties will know that they truly tried to resolve their differences before resorting to litigation, which, if any portion of the mediation was successful, will be minimal.

Why not call our office today to try divorce mediation?  You have nothing to lose and a great deal to gain.

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Family Law Mediation After the Divorce

Posted on March 12, 2011 by admin

If you  originally litigated your divorce, you will probably recall all the stress and expense that went into the process.  Usually with the passage of time or other changed circumstances a custody or support order may have to be modified some time down the road.  If you know it is time to overhaul a custody or support order in your divorce decree but cringe at the notion of going back to court to start the fight all over again, then consider using a family law mediator to help you and your ex negotiate a modification to the current order.  If the other party is agreeable, in usually one or two mediation sessions, you can draft up a stipulation to modify the current order and never set foot in court.  Our firm utilizes only attorney-mediators to help you resolve your issues.  The benefit for you is that being attorneys, our mediators can act as scriveners for you and draft your stipulation using the proper legal format and language.  No other kind of mediator can truthfully say that they can legally draft your legal documents.

Being able to mediate a new agreement and staying out of court also helps you avoid increasing the level of contention between you and the other party.  This helps to minimize the emotional turbulence on family members and children.

So if you are considering modifying an old order, suggest using mediation to the other party and then call us to schedule your appointment.

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