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Recent Posts in Simple Mediation Category
| February 12, 2011 |
| Can You Just HELP Us with a STIPULATED AGREEMENT and How Much Might It COST? |
| Posted By Desert Family Mediation Services |
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Q. My husband and I are planning a divorce. We read some of your blogs about mediation thank you for making so much information available. We have pretty much agreed how to divide our property. Neither of us wants spousal support from the other, and we have no children. We talked about hiring a paralegal to put the papers together, but my husband is not comfortable having a non-lawyer do it and I agree. Also, we are worried about either of us going to see a lawyer to assist because lawyers seem to find ways to complicate simple things. Neither of us wants to go to court either.
Are you willing to just help us finish all this properly and what would this cost?
Britt, Riverside
A. Greetings Britt! We are happy that you and your husband have found our materials useful. Our goal is to inform people about mediation, whether or not they hire Desert Family Mediation Services.
We are available to assist people in putting together any kind of family related agreement - our reason for being includes keeping people from stumbling through the dissolution or other family law processes. So much the better for you that there is no conflict to overcome. The following applies to mediations where as you say the parties really have resolved everything, or have very little to resolve, and are not conflicted about each other and the divorce or partnership dissolution.
Paralegals provide valuable services, including helping making divorce cheap. Unfortunately, California family law is complex and a non-lawyer (indeed a non family lawyer) is as likely to make a mess of things as to get it right. Not only are there a number for mandatory forms that must be properly filled out so that they are not rejected by the court clerk, but a divorce settlement contains a lot of what seems like boiler-plate provisions that are there for good reason and these need to be understand before it is added to your agreement. I have been hired after the fact to draft and defend motions by unhappy parties wanting to set aside a settlement because of inadvertent errors by paralegals or omitted provisions. Poorly written agreements open the door to this.
In the simplest of cases, the only thing that is desired is to dissolve marital status - there a paralegal can be a savings to you without much risk. And for some couples a lawyer or mediator is just too expensive; paralegal fees can be more than one-half what some lawyers charge so the savings may or may not be significant. By the way, most paralegals have lawyers available to them to review paperwork - these lawyers may or may not be experienced in family law, and usually bill for their review.
There are two forms of settlement documents commonly used in California disso's. One is the Marital Termination Agreement (sometimes called a Marital Settlement Agreement), which contains language that has the effect of incorporating the agreement terms into the Final Judgment. The other is the Stipulated Judgment. The second is the best to utilize since it contains findings and orders that conform with California statutes and caselaw concerning the enforcement of judgments.
At DFMS we used the Stipulated Judgment. Ours tend to be between 30 and 50 pages in length. Obviously they are not created from scratch in each case (and we do not charge as if they were), and their length depends upon whether we need custody provisions, support provisions, long lists of separate or community property, and they are tailored to whatever circumstances mediation participants find themselves in.
We prepare all the paperwork that is exchanged between the parties in all our mediations, and make sure that it is filed with the Court and that both participants have copies of all documents either prepares and signs. We charge $135/hour for our mediation assistant document preparation, and utilize our two assistants whenever possible rather than directly involving mediator time except for significant revisions. We charge a flat $125 set up fee for files, but we do not charge for faxes or copies. Notary fees are extra.
Our lowest rate for simple mediation is $350/hour for the mediator, and $135/hour for our in-house paralegal and our legal assistant. The court filing fee for a Petition for Dissolution of Marriage or Domestic Partnership (or legal separation) is $410. We try to ensure that is your only out of pocket expense and so suggest, particularly in cases where the parties are not likely to ever need to ask the Court to render or modify orders in the future, that a "default" be entered as to the Respondent (i.e., the second party) since this avoids the necessity of paying a second $410 filing fee on their behalf to the State and County governments.
Lets assume that you and your husband make an appointment to interview one of our mediators. We do not bill for the initial meeting that typically lasts between 30 and 60 minutes. This is where our Mediation Retainer is explained and signed. Sometimes we move directly into mediation that day, and it is possible (when realistic) to cover the outline of the entire settlement. It is not our function to talk anyone into or out of a particular settlement - however, in order for consent a Stipulated Judgment to be informed and voluntary, we will make sure that both parties have a basic understanding of what their rights and obligations under the law might be. One of the key benefits of mediation is that in almost all respects people are free to depart from "what a court might do" and achieve their own best agreements. Usually we will spend at least two hours learning what your agreement is and giving you a basic family law education.
Next, a Petition is prepared by our staff on behalf of one of the two parties which is filed with the Court. We ask the other to come in and receipt for it and this begins the six months' time running in order for the marriage to be dissolved. In order to have an enforceable stipulated judgment - in fact, as a condition to getting it in front of a judge for review and signature - the parties in California must exchange
"Preliminary Declarations of Disclosure." We ask the parties to fill these out in draft form, with out staff often combining the information from both into a document for each person that mirrors both parties' information. This can can take a couple of hours, although when the participants are more thorough it takes staff less time to finalize the documents.
Finally, the Stipulated Judgment is drafted from the parties' agreement and is reviewed by both and revised as needed. Ultimately it is signed by them and this is what is submitted to the Court, along with several other required documents. This avoids any court appearance. The Judgment agreement may take 1.5 to 3 hours of mediator time (or more, depending).
So, where mediation participants really do have their agreements buttoned up at the time we begin, out of pocket expenses rarely exceed $410; mediator fees may approximate $2,500; and paralegal/mediation assistant fees usually come in at about $400 to $600. If as your matter unfolds we find that we have to mediate through some issues that were not anticipated at the beginning, costs can increase. But because we bill you and you pay in real time, you will not find yourself surprised.
We wish you and your husband a successful and amicable dissolution!
Thurman W. Arnold, III, CFLS
2/12/11
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| October 29, 2010 |
| DO WE NEED MEDIATION If My Spouse and I Know Exactly What We Want to Do? |
| Posted By Thurman Arnold |
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Q. So I am wondering - why would we need mediation if my wife and I already know and are agreed about how to divide our stuff? I am thinking we should have a cheap divorce.
A. You may not need mediation at all! This is not for us to decide. There are many times when people want to hire a paralegal or perhaps a lawyer, or even a mediator, to act as a scrivener - that is, merely to take down the terms they dictate and turn it into a settlement agreement or stipulated judgment to be filed with the Court. Most mediator offices do prepare all of the divorce paperwork that gets filed.
Since you reference "stuff" I imagine you two don't have children. I think it is really important for people who do have children to consider mediating their breakups, especially when there are even only occasional conflicts over time share, communication styles, or a child support stream or the sharing and reimbursement of any number of kinds of expenses, because even intermittent disputes can deeply affect kids in ways that keep lingering.
But assuming you don't have children, whether you might consider mediating may depend on a bunch of factors.
- 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 |
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