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Recent Posts in Adversary Litigation Compared Category
| October 10, 2011 |
| MEDIATION Is the Sane Alternative - But Only If You Value Your FAMILY And Your Money! |
| Posted By Thurman W. Arnold, III, Family Law Mediator |
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DFMS Is Now (Almost) 18 Months Old!
I want to compliment and honor those of you who have seen the terrible destruction and waste that is characteristic of family court litigation, and who have been inspired by this insight to inquire about and undertake mediation with DFMS - or who have been encouraged within your locale to find peacemakers, rather than legal warriors to battle senselessly over unresolved issues relating to your marriages and domestic partnerships. Whether you retain DFMS or any other mediation firm to help you through these traumatic relational times, by opening yourself to mediated outcomes in divorce and family law conflict you become pioneers in entertaining the possibility that there is an alternative to the tone of warfare and acting-out that seems to distract and entertain a large part of our popular culture - personified by the talking heads on so much television and by our national politicians.
I have been practising law now since 1982. I have met and worked with so many unhappy individuals and couples over these long years, and owe to them some humble financial success - but I am here to suggest to you that it is possible to "STOP" and not to line the pockets of aggressive attorneys at the expense of yourself and your families. Truth be told, I bill large numbers in my litigated cases - especially those involving high conflict or significant property and support matters - but I would trade it all for helping you in designing your own destiny. I have written so much about this subject that I don't mean to bore you with repetition, yet I want to congratulate and reinforce those of you who are dissatisfied with the default adversarial system and whom are willing to investigate beyond the obvious, simplistic reactivity of thinking that tearing your former partner's heart out will somehow serve your own interests. It just isn't true.
I write this Blog tonight to honor a couple who successfully completed a complicated mediation today after about two months of mediated sessions (less than 12 hours overall). They showed such great dignity and fairness, while necessarily needing to contain and respond to their respective fears and concerns about finances and how they could move forward in this new world of single and not dual incomes, that I was almost stunned at how easy mediation can be for some. One member of this former couple had interviewed a storm trooper of a local attorney, and she recognized immediately (as she told me) that that attorney's agenda sounded hollow and self-serving and that the red flags had flared. This person chose differently, but most importantly she made a choice. Few do.
I will tell you a secret. By far the majority of divorce and family law attorneys depend upon your trance and hurt in order to earn their living. A disappointing many of them will lie, misrepresent, conceal, and vilify in order to serve their conflict agenda and to perpetuate this struggle. Certainly there are many parties to litigation who need this kind of ... "representation." The old ways won't die soon. It takes two willing parties to mediate relationship disputes. I will not make friends among by brothers and sisters in the law in making this bold statement - which is indeed an accusation (and an invitation) - and you already know it is true.
But this is the thing - lawyers can take some of your money, or they (we) can take all of it. I urge you to "wake up" instead. Save your famlies, save yourselves, and save your wallets and pocketbook and direct your own future rather than giving it over to strangers.
DFMS is now almost 18 months' old, and was the brain child of retired Riverside County Commissioner Gretchen W. Taylor and attorney-mediator Thurman W. Arnold, III, CFLS. DFMS is based in Palm Springs, but serves parties located within a 100 mile radius of the desert cities. In June, 2011, we launched Los Angeles Family Mediation Services with a tony team of seriously experienced and dedicated legal, mental health, and accounting professionals.
There is no other mediation team in the desert that has undertaken any training whatever in assisting family law litigants to avoid a government sponsored solution to relationship conflict. Our family law judges are overworked, underpaid, and pissed off. If you think that justice will be served by squaring off, you are likely going to be unpleasantly surprised. With the burdens imposed by the Elkins changes in the law, corners are being cut to the point that court divorce is a crapshoot. Good judges want you to mediate your disputes elsewhere.
But, sadly, I know that this crapshoot will not go away any time soon. I admit that anger, resentment, punishment and conflict are a disease that DFMS cannot cure. And for those folks I will ethically protect their interests to the best of my ability as a litigating attorney. But DFMS is resonating in our Coachella Valley, and a steady flow of awakened individuals are heading our way - we receive more emails and calls each and every week than before.
We offer free Orientations to outline for you and your spouse or domestic partner the landscape that you are entering. We offer premiere legal wisdom and an experience borne of many years' experience and of dealing with thousands of couples, as an antidote to the frustration and expense of lawyers and judges and the courts.
Why not consider a mediated outcome? You may not enrich the family law attorneys, but you will enrich your own lives. And, at DFMS, that is all that matters.
Thurman W. Arnold, III, Certified Family Law Specialist and Family Law Mediator
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| June 10, 2011 |
| LITIGATION Verses MEDIATION: ADVERSARY REALITIES Worth Considering Before Pulling the Trigger |
| Posted By Thurman Arnold, III, CFLS |
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Litigation Is The Default Strategy For Adjudicating Conflict
Some people believe that mediators don't hold the American legal system or the judges who play their role within it in high regard. That isn't the case. Speaking for myself, I feel that divorce court ought be the option of last, and not first, resort. We accept the status quo because it has a long history within the American cultural identity as being the only method for resolving disputes. This is not true in many countries, which is why foreigners sometimes look at our courtroom antics as a source of amusement and derision. The United States is the most litigious nation in the world. But it is also a fact that our freedoms depend upon our legal infra-structure, including the roles that judges and lawyers play. We just need to add the mediators to our organic view of our family law legal system.
Professional mediators value our legal system. Both litigation and mediation have as their ultimate goals the peaceful resolving of conflicts and disputes, and the equalization of power as between disputants so that weaker parties, or segments of the population, are not disadvantaged or oppressed by those who hold greater status, larger wallets, or the majority view. Without the safety valve that the symbols and procedures of justice provide, conflict could erupt into violence and the functioning of society would be imperiled. Watching the world and local news, it seems we are often on the edge of this escalation anyway, making the justice system even more crucial to how we manage and conduct our lives. Not only do courts help ensure order and some semblance of fairness between people or entities that are 'in argument' with one another, our belief that they fulfill this function is elemental to our sense of safety and our willingness and consent to submit to authority, governmental or otherwise.
Divorce was largely unknown in American legal society until the mid-1800's. Our governing system simply was not designed to address the financial and emotional consequences of divorce, and has been playing catch-up ever since. We superimposed the structures for resolving political and business disputes upon families for lack of another choice, and there was no other paradigm to apply until the last few decades when forward thinkers pioneered the first wave of alternative dispute resolution options. It is that same disconnect that inspired collaborative law and mediation processes within the family law arena as the second wave of non-court possibilities, but these processes are not yet mainstream.
Now another movement is gaining momentum that incorporates mediation in the center of our dispute solution thinking. Understanding the dangers and limitations of court divorce is foundational to making informed decisions today about what to do. This is one reason why I keep blogging about it.
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Family court judges and commissioners are passionate about serving the family law litigants who appear in their courtrooms, as are mediators specializing in these disputes. But unlike the limitations that judges find themselves enshrined within (rules, rules, rules), mediation contains only the barest of limitations. The minimal constraints for mediation are transparency between the parties and open disclosure about all relevant matters, consent to engage the process, and respectful speech between the parties. While simple, these rules are not so easy to follow which is one reason why adversary litigation for some people aren't going away any time soon. But I believe that a fresh outlook that incorporates integrity into relationship transition may be just a shift in thinking away.
Realities of Divorce Court and Limits On What Judges Can Achieve
- Although a marriage or domestic partnership dissolution is only about the parties lives and their children, if any, at all times the parties themselves are the least empowered and important persons in the court process.
- Judges are the most important decision-maker in family courts. They are adorned by the symbols of power. These include robes, a bench that is placed higher than any other seat in the room which focuses every occupant's eyes on their august presence, deputies who carry loaded weapons, the flags of government, titles of honor, Latin phrasings and more.
- As the deciders and dispensers of "justice," as a practical matter they are beyond challenge, cannot be questioned, and rule the process much like any mini head of state. There is some reason for all of this within the adversary process, if we are to consent to being governed (requiring that we hold faith in the governor's fairness and wisdom). Judges should be viewed as the personification of justice and the utmost decorum must be maintained; moreover, these symbols are also hoped to remind the judges that they serve by the will of the people who appear before them.
- At the same time, judges are merely people like every one of us. They have all the same biases, quirks, temptations, personal histories, and vulnerabilities. Judges have specialized training about ethics, bias, and managing the power they are granted in a manner that instills confidence. But no matter how you slice it, when power is ceded there is always a risk of abuse. With family court judges in particular, many of whom actually dread the assignment, being faced with stubborn disputes day in and day out carries the risk of reactivity, cynicism and sadness, tendencies of becoming lost in self-importance, frustration, and general burn-out and even a desire to flee. Whenever we grant people with power over us we tend to imbue them with god-like qualities. Although understandable this imposes quite a burden which is neither fair nor realistic. Judges are not gods.
- The fact is that some family court judges have no particular expertise in family law. We make a leap to faith that they do, but I am telling you this is not true. Should a well-meaning carpenter repair your car?
For these reasons I believe any person who wishes to control their own destiny will not place an unreasonable faith in the ability and power of judges, except as a last resort, to decide their fates. However, I admit that some people just cannot overcome their conflicts on their own, or are married to spouses that suffer from what borders on personality disorders. It is near impossible to mediate such couples successfully.
But for a vast portion of our divorcing population, where there is understandable distrust and conflict, mediation holds real promise in getting people through the end of relationship economically and with dignity. I hope that you might be one of the lucky ones.
TWA
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| December 05, 2010 |
| 2011 AMENDMENTS to the FAMILY CODE: MEDIATION Becomes Even MORE ECONOMIC |
| Posted By Thurman Arnold III, CFLS |
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A disaster may be looming in 2011 for some of the California family law disputants who don't realize they are free to opt out of the litigation experience by employing mediation or collaborative law processes as an alternate method for resolving their divorce, domestic partnership dissolution, or custody conflicts.
On January 1, 2011, the Elkins Task Force recommendations take effect as newly enacted Family Code section 217, along with other sections like
revised FC 2030 and
FC 3121 which are specifically intended to increase attorney fee awards so that both sides have equal access to justice. While these changes may improve the adversary and litigation experience for the wealthiest Californians in some senses, it is not going to help most family court participants. Indeed these "improvements" if they are to materialize will only come after hugely increased lawyer's fees, frustrating calender delays and continuances, increased acrimony between the parties, and strong dissatisfaction by at least one side with a judge's rulings. These changes in the law go to the core of the administration of justice in the Family Courts. As a result mediation becomes even more practical and sensible than ever before.
The Elkins committee which authored these changes was formed in response to Chief Justice Ronald George's 2007 California Supreme Court decision which overturned a policy of the Contra Costa Superior Court that essentially required family law and divorce matters to be heard by declarations, with very little ability for either party to present direct, live testimony or to cross-examine opposing witnesses. Jeffrey Elkins v. Superior Court (2007) 41 Cal.4th 1337.
In many ways the Court's ruling was inevitable and appropriate. The adversarial system is premised on ideas of due process and evidentiary rules. We assume that when a judicial officer as the "trier of fact" is able to watch and listen to people as they tell their stories, and to allow each side to test the claims of those others who contradict them, that that judge or family court commissioner is able to discern the Truth. Family court judges tend to be extremely dedicated and wise, but the best of intentions cannot necessarily overcome budgetary and time constraints in terms of decision-making on a crowded court docket. This is one reason why many seasoned litigators present their client's cases as a series of "sound-bytes," often with inflammatory rhetoric. Sometimes this obscures the truth.
We are all familiar with "profiling," and to a less dramatic extent the unconscious biases that people - be them governmental officials or ordinary citizens - bring to the analysis of any question, but especially those involving other humans. We all have accumulated preferences and biases, and no matter how sincerely and diligently we work to overcome this trait it seems generally impossible to eliminate. There is danger in giving up the power of decision-making about your marriage, your divorce, your children, etc., to others (including mediators). This is why many mediators resist acting like Solomon and persistently attempt to hand this power back to both parties. Mediators serve as guides - judges do not.
Nonetheless, in America we have been taught to assume that the best way to resolve conflict is by permitting litigants to compete in the telling of their differing views, and to allow some presumably wiser person to umpire the contest and declare the victor. My opinion is that this adversary courtroom system is the best that exists, but only when all else fails and then as a last and never as a first resort. But I've become cynical about government's ability to do better as an entity in deciding matters affecting our lives than we do for each other as individuals. You are free to disagree.
Family Code section 217 directs family courts in all hearings, including OSC's and Motion proceedings, which are where temporary orders are obtained before cases reach a Final Judgment (and also again when people seek to modify judgments later), to hear live testimony except where the parties themselves stipulate to allow their matter to proceed by declaration alone or where the court makes a finding on the record of "good cause" to dispense with oral testimony. Oral testimony takes place in something called an "evidentiary hearing."
Because evidentiary hearings take considerable time - anywhere from 30 minutes on simple issues to several days in complex or high-conflict situations, whenever one party refuses to stipulate to forego their right to testify and confront the witnesses on the other side, special hearing dates will need to be scheduled. They certainly won't happen when the parties first arrive in court. Instead courts will have to set aside special days and times for hearing testimony, or to assign the matter to other courtrooms [which newly revised Family Code section 2330.3 seems to discourage since it recognizes the benefit of assigning cases to one judge throughout the proceedings].
Many questions arise. When then will litigated cases finally get heard? What policies will govern the huge number of cases (read: families) that circle like airplanes awaiting courtroom traffic controller instructions to land, scrambling to touch down at once? Parties to litigated cases will have even less control over concluding their cases than they ever did.
How much will it cost parties to take time off from work in order to attend repeated hearings - never knowing when they are needed or not, or to wait in courtroom hallways for their case to be dealt with - along with the attorneys that accompany them with their fee meters running? How are unrepresented parties going to perform when they are expected to themselves conduct cross-examination, or to know complicated rules of evidence?
And how are parties going to feel about each other after they've listened to the other spouse, domestic partner, or parent take the witness stand and tell the court, court clerk, bailiff, and courtroom observers what a dishonest or poor mom or dad the other party is?
Divorce litigation is about to become way more expensive and time-consuming. We invite you to do the math.
At Desert Family Mediation Services we believe that mediation is the only dignified way to begin to end the financial and emotional interconnections of your relationship. Mediation is not necessarily easy. It is not for everyone. Many people will be forced by their own desires or the attitudes of the other person to wait in the courtroom hallways endlessly. But others will be much more fortunate, and this may be you.
I predict that the consequences of the Elkins rules in the coming decade will set in motion a backlash that will result in a substantial rewrite of the laws and procedures for family law disputants, and that our coming system will be reforged borrowing many principles seen rarely today outside of mediation. For now the new family code rules are sure to pressure legal consumers to find more economic ways to manage their disputes.
Mediation looks even more practical and sensible beginning in 2011!
Thurman W. Arnold III
Hon. Gretchen W. Taylor
Certified Family Law Specialists
"You Need the Bears"
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