Palm Springs Divorce Mediation Attorney
Family Law Lawyer Mediators Peasemaking Blog Frequently Asked Questions
Resources Contact a Family Law Mediator
DFMS Mission Statement
Welcome and Introduction!
California Mediation Statutes
How Mediation Is Structured
Integrative and Collaborative Mediation
Mediation and Parenting Form Library
Mediating Premarital Agreements
Same-Sex Mediations
Therapeutic Co-Mediation


What Marriage of Davenport Means for Mediation

Family law mediators and collaborative attorneys, and those attorneys who decry the shameless lack of ethics on the part of some high conflict divorce litigants and their attorneys, are thrilled with a May 4, 2011, published opinion from Justice Richman of the First Appellate District for California in Marriage of Davenport upholding a bold and incisive decision by trial judge Cerena Wong. 

As it relates to mediation, the decision is important for several reasons: 1) It demonstrates the insane expense that adversary cases can generate; 2) It serves a primer listing the types of conduct and behavior by out of control lawyers that courts - and lawyer's clients - must not tolerate; 3) It affirms a trial court award of $100,000 in sanctions and $304,387 in attorney fees against a Wife (plus paying Husband's costs for the appeal) imposed by reason of the aggravated mismanagement of her case by her attorney and the law firm she'd retained to protect her; and 4) the opinion holds that a lawyer's violation of the rules for mediation confidentiality provided for under Evidence Code section 1119 is grounds for awarding 271 sanctions against the client.

This is the first reported decision in California where a party was ordered to pay Family Code section 271 sanctions and attorney fees in part because their lawyer attempted to disclose matters that arose during mediation. While it is rare that lawyers will cross this confidentiality boundary, it does happen. Marriage of Davenport constitutes notice that failure to honor the mediation privilege may have costly adverse consequences.

As is usually the case in family law disputes over money and property, the people who suffer are the parties themselves. I predict that Davenport will help lead to revisions in our Family Code in 2012/2013 authorizing trial courts to issue sanctions' awards against attorneys and law firms separately from those that may be assessed only against litigants under the current scheme. Given a clear trend among California appellate courts to hold all the professionals in family law cases accountable to the courts and to each other, this is not only inevitable but a wise thing. Otherwise, the system will continue to break down.

I have written extensively on my Mindful Divorces Blog about Davenport as it relates to attorneys who act like attack dogs. Here I discuss the case in terms of its application to mediation. However, this statement from the appellate court summarizes the extent of the trial and appellate court displeasure with Jill Davenport's attorneys:

"'The Court questions the wisdom of such a large firm as O'Brien, Watters to choose to "educate" a newly admitted lawyer with a case that involved millions of dollars of varied assets in California and other states, with a long term marriage and complicated trust holdings. With no background in either civil or family law litigation, Mr. Andrew Watters admitted to the Court that he was taught to litigate this case with unbridled aggression. These uncooperative and uncivil courses of action have caused Mrs. Davenport unnecessary delays and unnecessary attorney fees and costs.'" [Emphasis added].

Sanctions and the Mediation Privilege

Jill and Ken Davenport were married in 1948 and separated in 1990, amassing an estate worth near 57 million dollars. Ken was a talented car salesman and real estate investor. Notwithstanding the break up in 1990, it wasn't until 2006 that Jill filed a petition for dissolution of marriage. During that 16 years "there was agreement and cooperation, including their participation in joint estate planning favorable to Jill, and agreement to sell off many of the [community properties]." Jill was then 75 years of age, and Ken was 78.

This cooperation ended in February, 2006 when something set Jill onto the road to reactivity and calamity. She herself fired the first salvo in the form of a letter to Ken which accused him of having "stepped over the line," having "lied to me," of being taken advantage of by others, and she made a series of demands for money and property. Although the parties had seemingly co-existed peacefully for almost 16 years since separating, the status quo exploded with her February 3, 2006 letter. Wife filed her Disso Petition 30 days later.

What had changed? At about the same time Wife retained the law firm of O'Brien Watters and Davis, LLP, to prosecute her divorce. When Wife's Petition was filed, senior attorney Michael Watters was named as her attorney of record. However, in November 2005 one Andrew Watters (presumably Michael's son and not his brother given the age difference), passed the California Bar and joined the law firm effective February 24, 2006. He was introduced to Jill three days later and became her gladiator in the case, so beginning an odyssey that would continue unabated for the next two years and more. According to Andrew Watters, thereafter he "personally handled or [was] personally involved in each and every transaction between the parties ..., as well as each and every discovery request, discovery event, court proceeding, and other substantive matter." As the First Appellate District court dryly notes, "Early on, a young and inexperienced attorney at that firm [Andrew] became Jill's primary attorney, and interacted with Ken's attorneys for the next two years, interactions that would generate a 35-page register of actions and 19 volumes of court files."

Andrew Watters embarked on a campaign of over-exuberant letter-writing and litigating which was at its core provocative, sneering, sarcastic, rude and offensive, entirely uncooperative, and that therefore generated massive legal fees on the part of the Husband (as well as Watters' own client). For numerous specific examples of what this conduct looked like, please follow the links above to the decision itself and/or my Mindful Divorces Blog.

Ultimately Attorney Watters filed a motion seeking $1 million in fees and sanctions against the Husband, which blew up in his client's face. Not surprisingly, Husband's attorneys filed a similar counter-motion. Husband prevailed.

In describing what conduct justified the trial court's award of more than $400,000 against Jill Davenport the appellate justices outline Mr. Watters' more egregious defalcations. Of interest here is the fact that as part of a declaration he filed to set forth the Husband's alleged uncooperative misconduct, Watters attached "mediation-related documents, set forth what was done and purportedly said in mediation, and referred to agreements reached in mediation." The trial court had found that Jill's counsel "made many references to what was presented and said in mediation in violation of Evidence Code section 1119."

Evid.C. ยง 1119 states: 

"Except as otherwise provided in this chapter:

(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.

(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential."

The Davenport court noted that " Ken, of course, incurred expenses in addressing these improper revelations." We have no evidence in the decision what portion of fees might be allocated to the expenses that Ken's attorneys were forced to incur in protecting the mediation privilege as opposed to his other abuses, but Family Code section 271 sanctions do not require proof of any actual injury or the specific amount thereof.

The Take-Away

Davenport is a ground-breaking decision on a number of fronts, but particularly because it chronicles in painful detail the types of aggressive and adversarial conduct that relationship breakup and the accompanying litigation tend to generate. It is more than a cautionary tale for lawyers. It reminds us that while some lawyers are busy proclaiming that their only concern is protecting clients who've been allegedly mistreated, when these warrior representatives become overly enmeshed with their clients' views and experiences that there is a huge but in some ways natural risk that they will lose all objectivity and become so identified with their clients' fears and hurts that the lawyers themselves act as if they were the ones who are divorcing the other side.

I call this a "natural" risk because I admit from my own experience that it requires effort and continuing reflection for attorneys (and even more so the parties) to remain focused on the process of solution-finding in a civil and non-emotional manner. This is a "tall order" to be sure. A good example of what happens when one is failing in this regard is that attorneys may abandon decorum and professionalism, and ignore well-established legal rules including the fact that mediation is, and must remain, confidential.

As I've written countless times, the adversarial, government sponsored method for resolving relationship breakup in anything approaching a holistic fashion is deeply flawed - principally because we humans are hard-wired to fight, flee, and react. One way that Family Court can meet its promise of protecting all the people who resort to the Courts requires that the consequences for obstreperous and unruly behavior be made known to disputants and legal professionals, and that divorce judges in appropriate cases impose those monetary consequences. Sanctions deter misconduct from continuing, and attorney fees compensate the victims of such misconduct. Historically judges have been relatively timid in awarding sanctions and fees in sufficient amounts to really compensate aggrieved parties from out of pocket losses caused by litigiousness, but this is judicial attitude is clearly changing. Appellate and family court bench officers are realizing that if they don't step in and manage out of control litigants in a meaningful way, that the public's confidence in government generally and the judiciary specifically will continue to erode. In the absence of accountability, those contestants and lawyers who insist on being bullies and running up fees will succeed in controlling the very asylum their behaviors create.

Fortunately for you, since you've bumped into this Blog and had enough interest to wade through it, something about mediation and the too common tragic consequences of adversary litigation resonates.

While it takes two sides to agree to mediation and then to stick with it in good faith, and mediation gives no guarantees (indeed, to whatever extent it was attempted in Davenport it was evidently doomed to fail by the attitudes of at least one side), Justice Richman together with his colleagues, Justices Kline and Lambden, provides us with a template that is instructive:

  • The parties are responsible for the tone of their family law proceeding 
  • The parties reap the rewards or pay the consequences for the choices that they make, or which their attorneys make for them
  • Selecting your attorney in a family law case is a critical decision. It is also problematic because it is challenging to obtain enough information, that is reliable, at the outset to know whether these attorneys will walk their talk (the sanctioned behavior of the law firm that represented Jill Davenport contradicts the Mission Statement and Firm Philosophy pages on that firm's website; to be fair such statements are aspirational, but they also need to be authentic). Most  people must initially make a leap to faith in their selection
  • As one of the two parties to family litigation, you have an ongoing duty to yourself to evaluate whether the case is heading towards solutions, or devolving into name-calling destructive chaos. If you find yourself invigorated by the ongoing conflict, and are instructing your gladiator to thump the other side 'no matter what it costs' you risk losing yourself within a dark and dangerous forest and the blame and responsibility is rightfully yours
  • It is entirely natural, nonetheless, to have moments where you feel overtaken by the trance of the divorce experience (or to have periods of clarity where you recognize that you've been stewing in reactivity, much like when we find ourselves standing in front of the bathroom mirror with a toothbrush in our mouths, remembering nothing about how it got there). The trick for parties, and for lawyers, and what may make all the difference for you and your family, is that we benefit from clearing our heads from time to time and from exercising a willingness to put the past aside (I'm speaking to reactive outbursts) and start afresh, time and again. If we don't do this, we may become prisoners - we are only helpless when we fail or refuse to stop and reflect, something no one else can do for us
  • Consider mediating your matter while having a willingness to not view that process as a more sophisticated way of achieving the same financial or emotional outcomes you might seek or expect in litigation. Mediation works when people chose to cooperate on at least some levels. If everything must be your way, and if your mind tells you that you should get exactly what you feel entitled to (what the other party thinks is important be damned), you always have Family Court waiting out there ready to swallow you up!
  • Be respectful of others, and be kind and patient with yourself. Even if you must litigate (as where the other side insists), seek out expert lawyers who value peacemaking.

And rest assured that your efforts to mediate will be appreciated and safeguarded by outstanding Family Court bench officers and their counterparts in the higher courts. 

Mediator Thurman W. Arnold, III




No Comments Posted
Palm Springs Family Law Palm Desert Family Law
Desert Family Mediation Services
Attorney Web Design The information on this website is for general information purposes only. Nothing on this site should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.