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Divorce and Family Law Mediations, Riverside County, California

MEDIA ADVISORY FROM BARRIE J. ROBERTS, DIRECTOR OF ALTERNATIVE DISPUTE RESOLUTION PROGRAMS, RIVERSIDE COUNTY SUPERIOR COURT

May 3, 2012

NEW MEDIATION PANEL HELPS FAMILIES RESOLVE DIVORCE, CUSTODY, SPOUSAL AND CHILD SUPPORT DISPUTES WITHOUT COURT TRIAL

RIVERSIDE COUNTY: The Riverside County Superior Court is pleased to announce a new resource for families and couples facing family law disputes.

The new Family Law Private Mediation Panel lists over 20 attorney-mediators countywide who are ready to help parties work out solutions to their divorce, custody, visitation, spousal and child support disputes without adversarial court hearings or trial.

The panel includes mediators who serve every area of Riverside County, including Blythe, Indio, Palm Springs, downtown Riverside, Hemet, Banning, Temecula, Moreno Valley, Corona and more.

The new panel was posted on the court's website today: http://adr.riverside.courts.ca.gov/adr/fl/  Also posted was a new web page filled with information about private mediation for family law cases: http://riverside.courts.ca.gov/adr/famlaw_privatemediation.shtml

According to Presiding Judge Sherrill Ellsworth, "Our family law judges strongly encourage parties to use alternative dispute resolution, including mediation, to resolve their disputes."

"Costly and stressful adversarial court hearings are rarely in the best interests of the children or the parents," said Indio Family Law Judge Dale Wells. "Mediation gives parties the opportunity to express their concerns in a safe and private environment. With the mediator's help, the parties can reach voluntary agreements that are custom-made for their particular situation."

And, Judge Jackson Lucky, Family Law judge in downtown Riverside points out, "Family law decisions are so important because they deal with children and family finances. The parties understand their needs better than anyone else. Mediation puts control where it should be: with the parties. It allows them to make the best choices for themselves, instead of hoping that a judge, who is a stranger, will make the right decisions for them."

All mediators on the court's Family Law Private Mediation Panel are attorneys with at least 5 years of family law experience in Riverside County. Many have had extensive training in family law mediation. Several are certified as Family Law Specialists by the State Bar of California Board of Legal Specialization.

To schedule a mediation session with a member of the new panel, parties simply contact the mediator of their choice. Each panel mediator has posted an on-line Profile describing his or her background, contact and fee information, including whether reduced rates are offered.

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Divorce and Family Law Mediation

DFMS Is Now (Almost) 18 Months Old!

I recently attended The International Academy of Collaborative Professionals institute for training collaborative professionals in Phoeniz, Arizona. It was truly inspiring, and I appreciated the opportunity to join with a community of like-minded professionals who share a heartfelt desire to make the dissolution experience healthier and less destructive for children and adults.

As the mental health component assisting in a traditional full-team collaborative case, or as one of two dissolution coaches in a collaborative mediation (or as a co-mediator), my training, experience, and perspectives adds immense value to the team approach for resolving marital conflict. I provide useful tools for a mindful negotiation that focuses not only the best interest of your child, but also the best interests of each party as they move forward into a scary yet exciting new phase of their lives. One area where this is accomplished is in assisting clients to manage their intense emotions and reactivity, responses that are quite natural, in ways that encourage them to communicate and negotiate constructively. This in turn promotes achieving emotional closure.

An important piece of gaining emotional understanding of one's experience during this difficult time is to respect what is happening in the brain. Divorce is felt as an intense crisis and trauma. This sets off the fight or flight reaction, which makes it difficult for the two sides of the brain to work together. Speaking generally the left side of our brains house logic, thinking and objectivity. The right side houses emotion and subjectivity. When our nervous systems go offline due to crisis, trauma, or emotional intensity, the two sides of the brain are unable to communicate and integrate with one another. This can cause a break down of constructive, healthy communication.

Healthy communication includes verbalizing one's experience and needs in a mindful, non-attacking manner, while also being receptive to listening authentically. Not listening or feeling heard is a hallmark of communication gone awry. A mental health coach or a mental health co-mediator facilitates their client moving from this mode into an emotionally safe place. Reducing anxiety is a key to finding solutions. Yet many people think that they must suppress or ignore that tension because it is too uncomfortable to sit with, or they may feel that it is now time to speak out and tell the other partner all the blames that have been percolating as a means to retaking the individuality and dignity that seems to have become lost. While either response is reasonable given what is being experienced, it takes awareness to balance them in ways that can positively impact the road out of emotional turbulence.

At the close of the IACP training we were asked to write a mission statement as a collaborative professional. I wrote "I want to help keep families together as couples part ways." It is possible to maintain the "family" even as it seems to be disintegrating but it is hard to imagine this because we believe that unless the family is 'intact' it is not family. Research has shown that children whose parents divorce, but are able to have an amicable working relationship as a team for their kids, do just as well in the long term as those children whose parents stay together - this is remarkable to me because of the hope that it offers. Families can remain positively connected ever after the legal end of the relationship.

None of us wants a divorce, but divorce happens. Committing to work collaboratively with your spouse or domestic partner is an enlightened approach to resolving conflict, and it is effective for managing the stress of divorce so that it does not get absorbed by kids. This management of stress and conflict is also of immense importance for those without children, and your wellbeing deserves the same attention whether you are a parent or not.

You have alternatives to self-destructing in the throes of your relationship breakup, and I very much want to help you see and use them. These options aren't always apparent to the brain when all one can think about is survival, and your body and mind is reacting and trying to cope with this crisis. I want to help point this out to you, and to show you ways to de-escalate not only the tone of the interactions with your partner but also the stress on your emotional and financial systems. I am not acting as a therapist in that role, but as a facilitator. I don't ever tell you what you should do, but I can offer a resource for helping you to reframe what is happening in ways that may allow the brain to gain the perspective that we all tend to lack in the midst of great emotional challenges, when we are commonly otherwise listening to the repetitive mental tapes of our worries and so become driven by them.

Whether as part of a collaborative team, or as one of two divorce coaches assisting with a collaborative mediation, efficient use of mental health professionals can move individuals and couples beyond toxicity and pain in preparation for a healthy new chapter in their lives. It is an honor for me to have this opportunity. I hope it is something you care to consider.

Karen Horwitz, M.A., M.F.T.
DFMS Co-Mediator and Collaborative Professional

As is to be expected, people in the midst of relationship transition are experiencing a deep range of emotions that include varying levels of personal distress. For some these are manageable when mediation commences, but they may become inflamed by something that is said or felt during the process. For others anger or hurt is always evident as an 'elephant in the room'. Given sufficient provocation and intensity these dynamics can surface and threaten to derail the mediation.

This is particularly true when participants engage in persistent back and forth accusations and recrimination during the sessions. We encounter this with many families to greater or lesser extents, and we hear of it as back stories that erupt as arguments that the parties later report. This is all quite natural - family law cases are underpinned by powerful feelings about any number of subjects, each containing sharp hooks where people can find themselves caught and polarized in an instant.

Similarly, when strong emotions are used to justify and link to self-serving concepts of 'fairness entitlements' or to purely 'legal rights', threads that might lead to potential mutual interests and joint benefit win-win situations seem to fray or become knotted. Parties may begin to lose hope.

The impulse can be to end mediation, believing that Family Court is now the only way to end the dance. This may or may not be true for your matter. Mediation does require that both parties be willing to work together at pivotal junctures, and one party alone cannot do all the heavy lifting. But we hope that you not resort to litigation just because passions repeatedly challenge you (and the mediator) - after all, this tension may have been one reason you decided to mediate in the first place and is not news. Years working with families within the adversary system have demonstrated for us that people suffer immensely by adopting that course. Moreover, we have found that stubborn patience pays dividends and that cases that seemed impossible have ended well. When confronted during mediation by the other person's deep anger or you own, we urge you to stay the course.

By looking at what underlies intense negative feelings we all can be helped to better understand how resentment ripens into judgments that interrupt or render impossible the openness required for crafting workable resolutions. It is possible to "out" these judgments in ways that help to diminish the otherwise co-optive power they can assume over wise and sensitive decision-making.

We acknowledge that this can be a daunting task. The idea of investigating the reasons why we feel and what (pain?) we feel can be really frightening. It can sound like a replay of what is bringing the relationship to an end, of which you've had enough. It could also become another place to swirl and twist, and so it requires that the subject be approached with earnestness and integrity. For this is the rub: If parties to mediation remain fixed within an overriding anger, or the hurt that underwrites it, they are not likely to move on with their lives (or to achieve a settlement) in any satisfactory or healthy way. Each party's willingness to investigate what is transpiring a little more deeply may be a key that unlocks the door to an improved level of freedom for both. Together we can try to work through to it.

Partly because of these recognitions, DFMS mediators Thurman Arnold and Retired Judge Gretchen Taylor spent the past six days training with a small and passionate group of professional mediators under the supervision of Gary F. Friedman, Jack Himmelstein, and Norman Fischer. These gentlemen comprise the "The Center for Understanding in Conflict & The Center for Mediation in Law", based in Mill Valley and New York City. Gary is a peacemaking trainer, lawyer, and mediator based in Northern California. Jack is a conflict theorist and former law professor at the Columbia University Law School and lives in New York. Norman is an author and former Zen abbot who teaches mindfulness practices. This group is developing useful techniques for becoming unstuck when strong emotions threaten to overwhelm the parties' mediation.

Of particular focus was the high conflict divorce, and how it challenges mediators too. The parties' emotions can strike chords within us, and so our goal in undertaking this training is to better connect in an authentic way with our mediation participants and their experiences, and ourselves. We aim to improve our skillfulness in moving parties forward to successful outcomes even when cases become quite bitter, and found the workshop offered useful tools for helping maintain focus and for investigating how feelings can become destructive to the process. The parties' options and choices can be expanded and redirected in positive ways if we can sit and be present with what is distracting us.

Emotions need not be directly addressed in every mediation. Very strong negative feelings are rarely fatal to the endeavor. But if either party's experience includes dynamics that cause blockages to resolving their dispute, if permitted to do so mediators can guide the participants to better recognize what is occurring inside and between them, and so keep the process on track.

If this topic applies to your relationship transition, the three of us might benefit by openly discussing and exploring it early on.

Mediation is a difficult and beautiful dance. People arrive with deeply held and heartfelt concerns, and they will continue to hold these core values no matter what occurs. It is not for the mediator or the other party to try to change these core values, and that wouldn't succeed anyway. Mediators can facilitate cooperative insights that benefit both parties mutually, but they do not impose them. Openness is the parties' joint responsibility and a journey that they must undertake together if the process is to succeed.

People also arrive with settlement expectations, and while these may relate to core values, these are not the same thing and ought not be transposed. Expectations are entirely reasonable, but expectations can make people stuck - and mediation is designed to help couples become "unstuck." Fear of some perceived adverse outcome often underlies these expectations.

While mediation is an opportunity belonging to the participants, and the mediator is present to assist in actualizing dialogues that may lead to conflict resolution, mediators have a responsibility to maintain civility, dignity, and boundaries during the process. Mediation is not "anything goes" or "I should be able to say whatever I feel is important" especially if the other party might feel extremely unsettled by such statements. Themes of blame and shame often underlie such statements, and while these must be recognized they cannot be used as cudgels. It is the mediator's goal to assist equanimity.

I attempt to make this clear in our Orientation Session.  For instance, the  Mediation Agreement I ask you to sign contains the following language:

"The mediator will attempt to resolve any outstanding disputes among the parties as long as both parties make a good-faith effort to reach an agreement to both parties. Parties must be willing and able to participate in the process. The mediation agreement requires compromise, and the parties agree to attempt to be flexible and open to new possibilities for a resolution for their disputes. If the mediator, in his or her professional judgment, concludes that agreement is not possible or that continuation of the mediation process would harm or prejudice any of the participants, the mediation shall withdraw and the mediation conclude."

"Harm or prejudice" includes speech, conduct, behavior, threats of litigation, power-plays, or an insistence that the mediation process only validate one party's core beliefs or agendas where one or both parties are unwilling or unable to permit the other to have a different view. Different views are discussed and even to be encouraged, but that is not the same thing as saying "you must accept my views or else." I find that if people hang in with the process (one that they can always leave later since litigation remains available as a final resort), an unspoken attitude of "or else" may soften and dissipate as more information comes to light. The actual divorce or domestic partnership settlement usually ends of looking and feeling different that what was expected or feared.

Mediation unfolds in real time. It requires skill to manage the mediation exchange between the parties, but artistry or the passion of any mediator towards resolution won't guarantee that mediation between some conflicted spouses will succeed. At DFMS, we believe that our responsibility includes anticipating and reframing what is said in the mediation room. We may sometimes inquire as to what point is intended to be expressed. This is not to be disrespectful, but instead to protect the integrity and safety of the process itself, for each party.

Mediation disputants have to be willing to permit and even help the mediator to help them, understanding that the mediator provides no magic wand and relies upon the parties' own desire for resolution. Without a joint and separate commitment to the goals of mediation, when core values, expectations and fear collide with resolution possibilities the mediation may fail. We cannot give you guarantees. We do offer unconditional commitment to you and your family, nonetheless.

The dialogue between the parties must be one that they are both comfortable in engaging in. This is because mediation is a voluntary process.  Mediation cannot occur or continue without the other's consent. It certainly doesn't force agreement.

In contrast litigation allows either party to say whatever they wish to say, at least in declaration form if not when the process is occurring in open court and Judges are sustaining objections. Mediation requires more, and patience. This is because although in litigation while one side might have a say limited by Evidence Code rules of relevancy, in mediation there are two sides that must be supported at the same instant - equally if the process is to have integrity for both. Otherwise it becomes argument. 

There are times in mediation when one or both parties can't say what they might want to say, and we honor your frustration if this occurs. But mediation is not a platform for either party to launch into their unresolved sense of the relationship difficulties - that discussion is what brings you to us, and it probably hasn't worked thus far. Mediation is not therapy. The mediator's role is not to debate questions or issues with either party, but to try to provide the best environment for positive and respectful dialogue and problem solving, as well as legal expertise about family law issues. Some parties are more appropriately placed with litigating attorneys who can serve as their warriors, or in representing themselves, if that is their desire. 

Adversary litigation is not our wish for you, but sometimes it is the only open course. Mediation is not for every one.

One reason why people become "stuck" is that they develop patterns of dealing with conflict, over time, with their spouses, domestic partners, employers, children, inlaws, and just about everybody else. We respond in repetitive types of ways. These can be likened to unconscious "strategies" in the sense that we rarely make a decision to employ one pattern or another. The patterns can become conditioned over time, and may become a part of how we have structured our personalities. They may or may not be the same pattern in dealing with every person, or the same pattern that will arise every time, but patterns do develop. Very often the conflict patterns of other people trigger our own in specific and even predictable ways.

If you are considering mediating your family law matter, it may be helpful for you to reflect on your conflict interaction patterns. One important reason why is that conflict patterns provide a strong argument in favor of using mediation instead of some other dispute resolution method like the Courts, violence as an extreme example, or just plain arguing or disruptive conduct (yes, each of those can be a strategy for overcoming conflict). 

At DFMS we suggest that some form of peacemaking is the only approach that resolves disputes - the others just impose outcomes and call it a "result" or perhaps a "consequence."

In general terms there are three primary patterns that persons in conflict employ or express as a coping mechanism: Accommodation, Avoidance, and Control. They manifest in behaviors and speech, or the seeming absence thereof. They tend to look like this. Do any seem to fit your style of dealing with conflict more than others?

Accommodation

• Giving in
• Playing the victim
• Attempting to pacify the other
• Deference to the law
• Deference to the mediator
• Emphasis on sense of personal inadequacy
• Wanting peace at any price
• Failing to assert one's own needs

Avoidance

• Refusing to participate in mediation, litigation, or even conflict itself
• Avoidance of differences
• Indecision
• Withdrawing behaviors (refusing to engage and isolation)
• Going off on tangents
• Being overwhelmed by complexity
• Difficulties processing information
• Wanting it over at any cost

Control

• Dominating the other party or the process
• Seeing only one's own interest
• Rigid positions and outlooks
• Blaming behaviors
• Shaming behaviors
• Threatening behaviors
• Inability/unwillingness to view situations in different ways
• Acting in ingratiating ways towards the other party or the mediator

• The avoider avoids, and his or her interests are not protected
• The accommodator accommodates, and so sacrifices his or her interests
• The controller controls, tramples the interests of others, and their own as well

Mediation holds the promise that these patterns, including the triggers that the cause them, can be understood and real choices can be restored that are much healthier for all concerned.

• How much stuff is there and how long were you married? If you are dividing pots and pans and a small apartment full of furniture, without more, then chances are you don't need a mediation. 

• If there are no issues of spousal support or child support, or if what you propose to agree on is indeed perfectly adequate and fair to each of you (and you both know that to be so), then mediation might be an unnecessary cost for you.

• If there are no issues over repayments of loans to parents, no residence to divide or sell, and if the two of you really have no ongoing ties that will bind you together in the future in terms of finances or other people, mediation might not provide an added value to the quality of your divorce.

• If each partner has been and remains able to talk respectfully towards the other, and to behave with fairness and dignity, mediation might be superfluous.

• So long as there really are no imbalances of power, such as for instance one party who has decided there is nothing to disagree over and then sets about convincing the other that this is so, then mediation may not be necessary to protect the interests of either party.

But it is our experience that there are usually issues and agendas that lay beneath the surface of what each party voices. Many times the parties have assumed conditioned roles or "conflict patterns" (for instance "accommodation" or "withdrawal" from conflict, something I will separately blog because it is so unconscious and yet so important to understand) that mask or shortcircuit a full and fair resolution of the matters that must be settled in divorce or partnership dissolutions. If those patterns are not honestly looked at and addressed, then someone's interests will likely be damaged no matter how "friendly" or "amicable" the separating is expressed as being.

Mediation is the parties' process, not the mediator's. Just as both partners must be on board to attempt mediation, we believe that both partners ought be on board in believing that it will not assist them assuming they are otherwise willing to consider it. Sometimes one person has not really expressed that they would like to discuss in a safe setting what the agreement that has been reached really means, or inquire whether it is fair or whether there might be a better alternative. 

We are available to assist you whenever you feel that exploring mediation might benefit one or both of you! This is a topic that is appropriately raised at the Orientation meeting, or at any time once the mediation commences.

Thurman W. Arnold III 

The American Bar Association's Model Standards (2000) define mediation and affirm its importance and core values that can help guide consumers in choosing their mediator. At DFMS we subscribe to these voluntary standards:

Family and divorce mediation is a process in which a mediator, an impartial third party, facilitates the resolution of family disputes by promoting the participants' voluntary agreement. The family mediator assists communication, encourages understanding, and focuses the participants on their individual and common interests. The family mediator works with the participants to explore options, make decisions, and reach their own agreements.

Family mediation is not a substitute for family members' obtaining independent legal advice or mental-health therapy. Nor is it appropriate for all families. However, experience has established that family mediation is a valuable option for many families because it can:

• increase the self-determination of participants and their ability to communicate
• promote the best interests of children
• reduce the economic and emotional costs associated with the resolution of family disputes

At DFMS we are committed to the best practices in Family Mediation in the State of California.

The question of mediators talking to one party in the absence of the other can come up in a variety of contexts. This Blog discusses initial contacts from one party, often when they are simply seeking to learn about our services or other general information. We hope that this website can itself answer as many of your questions as possible, without the need for any direct contact outside of the mediation rooms between participants and mediators and before the Orientation or Initial Mediation Sessions. We are eager to talk to you both whenever we are all together!

At DFMS our mediators attempt to avoid speaking to either party directly outside the presence of the other. This includes what we call our "Intake Process." The only exceptions generally involve scheduling an Orientation Meeting, or when a client calls who happens to catch us answering a phone. Instead we attempt to filter your initial calls through our non-mediator resolution assistants.

If we do wind up speaking with you, please understand that we will decline to discuss your case, your position, the facts, your expectations, the other party, or anything that would tend to enlist us outside our positions of neutrality. We are not being rude.

I have been asked 'well, since you aren't deciding our cases or acting like a judge, what is wrong to talking to you outside the presence of the other party?' My answer is usually something lilke this: "If Jane was wanting to have this conversation with me, and asked I not tell you, Joe, about it or insisted that it didn't matter what we discussed, would the mediation process feel safe for you?" 

There are two aspects to this dilemma: (1) it is essential that your mediator actually be neutral and unbiased in order to protect the integrity of the process, and even seemingly innoncent conversations tend to create an unconscious bond between participants and (2) it is equally critical that there be no appearance of bias, meaning that certain boundaries must go into effect from the first communication so that both sides are convinced that the process is fair. 

However, this is not to say that you and the other mediators at DFMS, along with your spouse or partner, can't jointly decide to a different arrangement once the mediation process is underway if everybody - including your mediators - agree. However, this will be rare.

Mediator Jane E. Shatz

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We are pleased to announce that Mediate.com, the largest information source for all types of mediation in the country, has recently published an article by Thurman W. Arnold entitled "The Peacemaking Option for Divorce and Dissolution of Domestic Partnerships:  How Family Scientists Support Interest Based Conciliation and What That Means for Separating Couples". 

Excepts:

"Family scientists have gathered considerable information that suggests that peacemaking solutions to divorce and breakup might offer a brave new option for people transitioning out of relationship. Peacemaking offers a “controlled” alternative to the chaos of adversarial struggle. While peacemaking lawyers are not therapists, the process that peacemaking facilitates is itself entirely therapeutic because it allows both parties to concentrate on their felt interests and the interests of their families. It a 'controlled process,' managed by the parties themselves and orchestrated by a peacemaker."

"Adversarial divorce does have devastating consequences for children, but peacemaking divorce possibly need not have. Social scientists have learned that parents who divorce are subject to “inter-generational transmission,” an increased likelihood that divorce will happen to them too. For instance, researchers have found that parental divorce increases the chances of a daughter’s marriage ending within the first five years by as much as 70%. Incredibly, if both the husband’s and the wife’s parents have been divorced, these odds increase by 189%. This has the effect that for children’s marriages to be successful such children of divorce may need to consciously guard against behaviors that might undermine their marriages. How parents model divorce for these children has lasting implications for their children’s success in doing so. Understanding this common reality is transformative for the next generation."

For More Information, Please Contact DFMS