|
Recent Posts in Mediation and Financial Support Category
| December 05, 2010 |
| 2011 AMENDMENTS to the FAMILY CODE: MEDIATION Becomes Even MORE ECONOMIC |
| Posted By Thurman Arnold III, CFLS |
 |
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"
|
|
| Continue reading "2011 AMENDMENTS to the FAMILY CODE: MEDIATION Becomes Even MORE ECONOMIC" » |
|
Permalink | Comments(0)  |
| |
| November 14, 2010 |
| BENEFITS of MEDIATION Include Receiving ALL RELEVANT INFORMATION |
| Posted By Desert Family Mediation Services |
|
In the typical experience of divorce or partnership dissolution, parties may or may not make use of legal professionals. Estimates are that over 60% of people don't hire lawyers or even consult with them to address the legal aspects of their family law matter, and in some populations that percentage is much higher. Yet, divorce is exceedingly complicated even for "experts".
Similarly, many people do not seek assistance from mental health professionals when they are ending relationships. Those that do rarely learn about parenting, co-parenting, child development, or peaceful ways to unwind interpersonal entanglements. Yet, we have little innate knowledge about such matters.
In court proceedings over-busy judges make decisions, usually without explanation. As a practical matter, those rulings are not open to question or challenge - in a way that is reminiscent of the power imbalance between parents and very young children. Unlike adult/child relationships, however, judges don't instruct the litigant about anything. There is very little about the Court experience that allows for feedback in ways that might help the parties to understand what is occurring or how to deal or cope with it. Even when parties have attorneys they rarely explain the reasoning underlying the court's decisions to their clients or the basis for their recommendations.
Where the parties have children and cannot come to custody and visitation agreements forensic therapists and psychologists may be appointed who have differing levels of training and mastery, and little time or resources, to make custody recommendations.
The ironic truth is that in family court litigation clients are always the least important and empowered persons in the proceedings. This means that for some people the experience becomes a lonely, clumsy, uninformed struggle that frequently leads to further unsatisfactory consequences.
Mediation and co-mediation offer major benefits and advantages above the customary paradigm. Mediation is first and foremost a forum for educating the parties about all relevant circumstances. It functions to provide a discussion and an exchange of information that is required to make informed decisions possible for each participant. For a person's consent to a settlement to be voluntary and intelligent, they must first be provided all relevant legal, financial, child-specific, and sometimes psychological information.
At DFMS we believe that the mediator's role includes educating parties about the legal principles that affect their dispute, without becoming fixated or stuck on projected courtroom outcomes. People can be way more creative in achieving mutually sustainable resolutions when they also consider areas of common interest, rather than merely applying legalistic formulas. We have found that people can also benefit from understanding emotional reactivity from the perspective of mental health professionals.
Our lawyer mediator Thurman W. Arnold is a Certified Family Law Specialist, a designation and achievement that required a great commitment and investment of time as well as supportive judicial and peer reviews. He has 30 years' experience.
Our retired judge Mediator Gretchen W. Taylor is not only a Certified Family Law Specialist but was a Family Court Commissioner for eleven years, first at the Indio courthouse and then at the downtown Los Angeles Family Court. She has 35 years' experience.
Our psychologist mediator Dr. Jane E. Shatz has decades of professional experience working with children in and outside of the southern California court system. She is an expert in all manner of parenting disputes and issues, and she will make the best family science wisdom, particularly as it pertains to parenting and children, comprehensible.
Our marriage and family therapist co-mediators Karen Horwitz and
David Hayes are exceptionally trained and experienced counselors, and each has the ability to explain complex issues relating to family dynamics and interactions, and to suggest concrete ways of how to modify them and so move on.
Whether you choose one mediator or a team of two interdisciplinary mediators, the most important benefit that you will derive from the mediation process, aside from resolving your dispute respectfully, efficiently and economically, is that of having been the central figures within the process. We will explain the law to you, we will ensure that the process between you and your former spouse or partner is thoroughly transparent and fair, and we will give you the tools to successfully complete mediation and to address future disputes more positively and effectively than if you continued the old patterns.
Mediation is all and only about you and your family. It educates and empowers and so leaves nothing to chance or misinformation. It only requires two willing participants to explore and engage the process.
Desert Family Mediation Services
|
|
| Continue reading "BENEFITS of MEDIATION Include Receiving ALL RELEVANT INFORMATION" » |
|
| Permalink | Comments(0) |
| |
| October 24, 2010 |
| How Confidential is "CONFIDENTIAL" MEDIATION? |
| Posted By Thurman W. Arnold III |
|
Q. One of reasons why I am considering mediation is that that I've heard it is confidential. It is really important to me and my family that our personal matters not become public. How confidential is it? I mean, I'm not Mel Gibson and I don't want my public affairs aired - ever!
A. There are several layers of confidentiality from our perspective at DFMS.
First, it is important to know that in terms of a mediator's involvement and the mediation process itself, one party alone can not compel the other party - or the mediator - to disclose what was said, how it was negotiated, what the concerns were, what was offered, or anything else that happened both within the mediation as it occurs in the presence of the mediator or outside of the mediator's presence to the extent it was a discussion that involved the subject matter of the mediation.
California Evidence Code section 1119.
What this means is that in another court proceeding (or the underlying proceeding when a case is pending but the parties choose to suspend it while they attempt resolve some or all of their conflicts through mediation), the mediator cannot be compelled to testify or open their files absent consent by both parties and of the mediator themselves.
Evidence Code section 1122.
The law is arguably uncertain whether Mediators must open their files when both parties demand it and for instance can be compelled to testify against their will, because the mediation privilege also belongs to the mediators. I will separately blog those cases for those who might be interested. In essence while there is federal authority that suggests that mediators can be forced to testify as least as to some matters occurring during mediation, California cases have applied a stricter standard in apply the California mediation privilege statutes. Our belief is that mediators cannot be compelled to testify about the mediation process itself, whether both parties consent to it or not.
What this does not mean is that a gag is automatically is placed in the mouth of one of two parties (or both) who want to argue or spin their case in the popular press. People can and will say what people can and will say. What it does mean is that third parties - employers, children, co-workers, and the press cannot learn a thing about what transpired in your mediation, except as to what was actually filed with the Court, absent the consent of both (or all) party participants. We live in a world of celebrity innuendo where many people believe that they are entitled, as a matter of right, to learn about the personal lives of politicians, actors, and community public figures - and this they can often do, in fact, by taking a trip to the local courthouse. But not where these disputants have cloaked themselves behind the mediation privilege which current California jurists must obey (except, of course, in cases involving bodily harm or more, or fraud).
Contrast the public Court experience with mediation, where nothing is filed anywhere to become a matter of "public record," except what both parties agree upon and jointly decide to show the world.
Mel Gibson's bitter entanglements have, in my opinion, cast an unfortunate pallor over mediation but this is not the fault of the mediators or of the mediation process. I believe that both parties in the Gibson/Oksana case attempted to abuse the mediation process for different reasons - possibly only after the fact (after the mediations concluded) - and in order to respond to public criticisms, or to seek more money, in tandem with the strategic releasing of the alleged audio recordings.
Their case is a modern Greek tragedy, and the backdrop of mediation and the participation of the mediators are simply props for the larger display of the parties themselves. This may be unfortunate as it affects the public perception of mediation, but it really has everything to do with parties who embrace the attention that public conflict brings and nothing to do with the integrity of mediation.
The beauty of mediation is that the process belongs to the parties, not to the parties' lawyers, and not to the mediators. Therefore there is nothing for the mediators responding to public battles to do but to maintain their own silence and integrity.
Next, the mediators at DFMS have each had experience with high profile cases, including lobbyists, local politicians, celebrities and other high profile folks, and many 'less privileged' people ("privilege" can be an oxymoron). It is our commitment to the parties, and to the process, that we maintain utter and complete confidentiality unless compelled by a Court order to speak.
And, one of our intentions in providing mediations from our addresses in Palm Springs, Beverly Hills, Century City, and Los Angeles is to help our clients obtain and maintain practical invisibility by mediating in the venue that best assures privacy.
Importantly for you and us, because our focus is on the transformative power of mediation and its positive affects upon divorce and other family law contests (and children), we believe that the parties who are drawn to employ us will embody a discretion that is appears to be absent from those couples who are driven to become high-profile and so share their struggles with a world that is, sadly for these others, just amused and lifelessly entertained.
We help resolve your conflicts with an uncommon passion and dedication!
T.W. Arnold
|
|
| Continue reading "How Confidential is "CONFIDENTIAL" MEDIATION?" » |
|
| Permalink | Comments(0) |
| |
| October 19, 2010 |
| Why We Won't TALK ABOUT YOUR CASE When You INITIALLY CALL |
| Posted By T.W. Arnold |
|
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.
T.W. Arnold, DFMS Mediator
|
|
| Continue reading "Why We Won't TALK ABOUT YOUR CASE When You INITIALLY CALL" » |
|
| Permalink | Comments(0) |
| |
| August 03, 2010 |
| Mediate.com Publishes New Article by Thurman W. Arnold III |
| Posted By Desert Family Mediation Services |
|
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."
At DFMS it is our goal to be leaders in the field of Mediation as applied to complex family law matters. This includes informing not only the public about alternatives to traditional litigation, but also developing interdisciplinary approaches that may be used by mediation professionals themselves. |
|
| Continue reading "Mediate.com Publishes New Article by Thurman W. Arnold III" » |
|
| Permalink | Comments(0) |
| |
|