2. So, in a non-adversarial mode, we have the opportunity to stay out of court, keep control over the outcome of our case to decide what we think (not a judge) is best for our family, to limit our fees and costs and to keep our negotiations private...isn't this a no brainer? Why doesn't everybody choose a non-adversarial mode?
There are actually many reasons why people choose to litigate their case as opposed to going into a non-adversarial mode...and some reasons are better than others.
Some good reasons people choose to litigate are the following: The other party has a disorder that prevents him or her from behaving appropriately or making rational decisions; there was domestic violence by one of the parties and the victim does not feel comfortable or safe sitting in the same room as the perpetrator; the other party does not want to divorce and, therefore, chooses not to cooperate in obtaining a divorce amicably; either one or both parties do not have the capability of taming negative emotions which causes many problems, including lack of rational decisions, unproductive communication, etc.; and, one party has too much distrust in the other party that cannot be alleviated somehow in a non-adversarial mode.
Some poor reasons people choose to litigate are the following: one or both parties are not aware of even the existence of a non-adversarial mode, so they rush out to hire an attorney for immediate "protection"; there is a belief that money can be saved by doing the case on his/her own, only to find out that many things were done incorrectly that necessitated more time and money later, including the lack of education to make truly informed decisions; one or both parties have a misconception that the law is black and white and an attorney will surely get what's "fair" in court, only to find out that the particular area in the law was grey and/or the judge used discretion that favored the other party; one or both parties were not able to put their negative emotions aside, including forgetting about the past, to be able to make decisions that will serve the parties and their family in the future; and shortsightedness in looking to the best gain now instead of planning long-term for the future.
3. Is there anything the other party and I can do to help us work our issues out in a non-adversarial mode?
Absolutely. The number one thing the parties can do which cannot be stressed enough is to adopt the following mindset: 1) look to the other party, not as having "problems" or "issues," but, rather, as having "concerns," and then ask yourself, "How can I, within reasons, without sacrifcing my own values, alleviate the other party's concerns?"
We also suggest that the parties consider seeing a therapist that can help with any negative emotions that may have resulted from the past, reading some books and listening to audio recordings regarding productive communication (i.e., "Taking the War Out of Our Words," etc.) and focusing on how to make a better future instead of looking to the past, which usually only leads to blame, resentment, anger and sadness.
4. I've heard you say "Family Law Mediation" and "Custody Mediation"...what's the difference?
"Family Law Mediation" is a private and confidential process that can include any family law issue. In Family Law Mediation, the mediator does not make any recommendations to the court and is not employed by the court. "Custody Mediation," on the other hand, is a law-mandated process where the parties sit down with a mediator to discuss only the issues of custody and parenting time. The term "custody mediation" has now been changed to "Child Custody Recommending Counseling." Depending on the county, child custody recommending counselor may provide recommendations to the court as to what is in the parties' children's best interest regarding custody and/or parenting time in the event the parties cannot agree. Unless indicated otherwise, any and all references of "mediation" on and off this website refers to "Family Law Mediation."
5. My spouse and I are thinking about mediation, now what do we do?
If both parties are on board with considering mediation, the first step is to make an appointment so you and your spouse can see the mediatortogether. Every mediator conducts their sessions differently, so this is the time to become educated as to the mediator's process, fees, billing arrangements and personality. It is imperative that both parties feel comfortable with medaition as a mode of choice, how the mediator conducts his/her mediation process and the mediator him/herself. Once both parties retain the mediator, there will be a series of sessions until all of the family law issues are discussed and resolved. At Ginter Family Law, we walk both parties through all of the procedural (i.e., how long do we need to wait to become divorced, what do we need to file, how do we fill out forms, etc.) and substantive (i.e., property division, custody, parenting time, spousal support, child support, etc.) issues so the parties can make informed decisions. Once all the issues are resolved, a settlement agreement is drafted that the parties sign that is filed with the court. If all issues were resolved in mediation, typically no court appearance is required for the parties.
6. Now that I've learned a bit about mediation, I seem to like that process. However, I know that the attorney mediator will not be representing me as my own attorney and I kind of liked the idea of having my own attorney. Is this still possible?
Absolutely. At any point in time, either or both parties can hire what is called a "consulting attorney" to speak with. In fact, a consulting attorney is highly recommended. Oftentimes, if a consulting attorney is hired, the consulting attorney does not attend the mediation sessions. Rather, the consulting attorney is more on the "sidelines" in case the hiring party had any questions or if the hiring party would like to show the consulting attorney legal documents before they are signed. Since consulting attorneys are typically not nearly as active as they would be in a litigation case, oftentimes their retainer amounts are lower. A consulting attorney could even be an attorney that either party saw initially, before deciding that mediation would be an appropriate process. This way the client can still maintain that relationship with that attorney and the parties can then jointly seek out a mediator they feel comfortable with.
7. What is "Collaborative Law Process"?
Collaborative Law Process (a.k.a. "Collaborative Practice") is a team-based non-adversarial option that is geared towards resolving a divorce or a legal separation. Collaborative Law Process is now recognized by statute in California in Family Code Section 2013, which states: "a) If a written agreement is entered into by the parties, the parties may utilize a collaborative law process to resolve any matter governed by this code over which the court is granted jurisdiction pursuant to Section 2000. (b) "Collaborative law process" means the process in which the parties and any professionals engaged by the parties to assist them agree in writing to use their best efforts and to make a good faith attempt to resolve disputes related to the family law matters as referenced in subdivision (a) on an agreed basis without resorting to adversary judicial intervention."
Unlike mediation and litigation, both parties must hire an attorney that becomes the parties' attorney of record. Other "team players" common to Collaborative Law Process are 1) Communication Specialists (a.k.a. "Divorce Coaches"), who help the parties productively communicate with each other and tame emotions, 2) a Child Specialist, who, if there are minor children, acts as a voice for the children to help the parents and other team members have an understanding of the children's feelings, wishes and development and 3) a Financial Specialist, who can help the parties with taxes, the law-required disclosures, budgets and planning and cash flow analysis. Some of these other professional individuals are required, depending on the particular group, if any, the professionals belong to.
Through a series of meetings, the team helps the parties resolve all the issues in their matter, typically without having to appear in court, if the matter is fully resolved. To enter into a true Collaborative Law Process case, the parties and their attorneys actually sign a contract that is filed with the court. This contract typically contains the guidelines and protocols the parties and the professionals agree to follow. Additionally, a provision that is common to all Collaborative Law Process contracts is that, if the process breaks down for any reason, all of the professionals, including the attorneys must be fired and cannot be re-hired by the parties.
At present, the guidelines and protocols to be followed by the involved professionals and the parties is privately driven, as opposed to being driven by law. In other words, for example, if your attorney belongs to the group "Any Location Collaborative Practice Group," then the group will likely have a set of guidelines and protocols for the attorney (and other professionals) to follow. It is not a requirement to belong to any group to be a Collaborative Law Process professional; it simply means that the professional not belonging to a particular group is not bound by guidelines or protocols of any particular group, unless that professional signs an agreement containing those guidelines and protocols.
8. I have heard of the term "Cooperative Practice"...what is this?
As previously mentioned, if a professional belongs to a Collaborative Law Process association or group, there are guidelines and protocols that are supposed to be followed. There have been individuals that do not like some of the protocols and guidelines typically found in a true Collaborative Law Process case. Therefore, some attorneys, including myself, are open to agreeing that the case will proceed amicably out of court, but with modified protocols and guidelines. Similar to a Collaborative Law Process case, both parties must have an attorney. Since there really are no rules, per se, for a Cooperative Law Process case, other than industry standards or the guidelines and protocals adopted by a Collaborative Law Process group, the guidelines that will be followed by the team (i.e., the parties and the attorneys) can be customized, although basic premises of a Collaborative Law Process case should still be adhered to...that is, neither party will utilize formal discovery, formal motions will not be filed and the parties will not seek court intervention.
At Ginter Family Law, we approach a "Cooperative Practice" case in one of the following two ways, depending on the client's preference:
1) We enter into a Full Service litigation agreement and send a confirming letter to the other attorney indicating our informal agreement to approach the case cooperatively. If the case escalates, we can simply remain on hand for court appearances, motions, discovery, etc. or,
2) We enter into a Litigation Partial Service agreement, specifically "carving out" litigation-like tasks, such as court appearances, motions and discovery. If the case escalates, the client, not the attorney, is resonsible for those tasks, unless a new fee agreement is entered into between the attorney and the client. This typically allows for a lower retainer since the client shoulders some of the legal responsibility for the case.