Blog Layout
Jennifer Winestone • Oct 13, 2015

Family Law Process Options - Everything Including the Kitchen Sink

“First we make our choices. Then our choices make us.” - Anne Frank


When a couple makes the difficult decision to separate, they often seek professional guidance about the process. Their initial inquiries are driven by questions like:


How do I get divorced?; 

What are my rights and obligations?; and, 

How long will this take? 

These are the right questions, no doubt. However, any answers will be wholly deficient, if they do not first address the crucial - but often forgotten - question: 


What are my process options and which one is right for me? 

So, here it is - the spectrum of family law processes - in a nutshell, with everything including the kitchen sink.


Kitchen Table


At the far left of the spectrum, we have the kitchen table option. This is where the parties will gather together (usually around the kitchen table) and negotiate an agreement that works for them. This is generally done without the assistance of counsel or professional expertise. While this self-help collaborative model is not without its risks, it is a reasonable option under the right set of circumstances. Where separation is amicable, the marriage was of short duration, there are no children, and there are minimal marital assets, a kitchen table negotiation can be an inexpensive, efficient and effective process option. Parties will still need to formally file for dissolution with the court, which can be a complicated roadmap of forms and technical requirements, however there are excellent self-help resources available through the courts for people navigating the system on their own. Community and professional resources (i.e. limited scope or consulting legal services) can provide additional guidance and support. 



Mediation


This is my favorite process option and the one to which I have devoted my professional efforts. Mediation is a voluntary and confidential negotiation process, led by a neutral facilitator (the “mediator”). The mediator has no power to decide the issues, but works with the parties to help them generate options and reach agreements. 


Mediation does not fit squarely at one end of the spectrum or the other. It is available both as a stand-alone process and in conjunction with the other methods and procedures, outlined below. For example, mediation may be used in the collaborative process, prior to an arbitration, in efforts to break impasse in negotiation, and/or in a last ditch attempt to avoid trial in litigation. Due to the voluntary and confidential nature of mediation, there is minimal risk associated with the process. It creates a safe space for communication and negotiation, and as a result, there are a wide range of circumstances in which mediation is a recommended process. However, there are also circumstances in which mediation may be inappropriate, for example, where there is an insurmountable power imbalance between the parties or where one party is strongly opposed to mediation.



Negotiation 


Like mediation, negotiation is a process that floats along the spectrum. It is used at the kitchen table and in mediation, collaborative law, arbitration, and litigation. Negotiation is a form of dispute resolution in which parties make a series of competing proposals with the goal of achieving a mutually agreeable settlement. Negotiation may be party-to-party, lawyer-to-lawyer, or a combination (sometimes described as a “four-way” negotiation). 

 


Collaborative Law


Collaborative law fits somewhere in the middle of the spectrum. In a collaborative process model, parties commit to resolving the conflict through good faith negotiations out of court. Each party is represented by their own independent attorneys who have been retained in a limited engagement to assist the parties in achieving settlement of all issues. The parties and their lawyers sign a “participation agreement,” which sets out the process goals and the parties’ joint commitment to negotiate without the threat of litigation during the collaborative process.  The process is voluntary and the parties are free to withdraw from it at any time and proceed to litigation, with the caveat that in such circumstances both lawyers are disqualified from further representation of their clients in the court process.



Arbitration


Moving along to the right side of the spectrum, we find arbitration. Arbitration is a private process in which a third party neutral (the “arbitrator”) is empowered to decide the matter, with similar authority as a judge. A creation of contract between the parties, the arbitration process is very flexible. It can be binding or non-binding; formal or informal; and provide parties with elements of control they would not otherwise have in litigation, for example the choice of their arbitrator, taking into account his/her experience and expertise. A binding arbitration award is arguably more “final” than a court judgment in that the award is not appealable and may be vacated only under very narrow and limited circumstances. Arbitration may preferable to litigation where privacy, control and finality are important concerns. 


 

Hybrids


In addition to the options above, there are hybrid processes, such as Med-Arb or Arb-Med. Like the name suggests, these processes involve a combination of two or more processes. Hybrids are built-in backup plans and add a further element of flexibility and control to a chosen process. Consider whether a hybrid process might be beneficial to you upon your determination of a primary process choice. For example, once you’ve decided to mediate, consider whether arbitration might be the next best option, if you are unable to reach resolution at mediation. If so, you may consider entering a Med-Arb agreement which sets out the parameters of your tailored dispute resolution path.



Litigation


Litigation exists at the far right side of the spectrum. This is the default process and one in which too many disputants find themselves for lack of complete understanding of the spectrum of options. Litigation is a public process in which a neutral trier of fact (the “judge”) decides the matter. It is adversarial, formulaic, and expensive, and as such it is a good process “of last resort”. It is also a necessary process in many circumstances and parties should not be fearful of engaging in litigation under the right circumstances. Notwithstanding, litigation is generally best utilized when it is combined with other process options like mediation and/or negotiation.


 

The Kitchen Sink


This process option exists across the entire spectrum and utilizes the different processes, as required. This option is arguably the most flexible and invites the strategic tailoring of processes to a particular conflict and the separate issues underlying the whole. The kitchen sink recognizes the use of different options for different issues in a case or at different stages of a proceeding. For example, parties may decide to mediate a custody dispute, arbitrate property division, and litigate support. Navigating the kitchen sink ought to be directed by competent counsel and led by well-reasoned strategy.



There is no one-size-fits-all approach to handling your separation. In fact, there is a myriad of ways to bring your family conflict to conclusion. As a first step to your separation and/or divorce, make sure you give due consideration to your process options in order to ensure you are on the best possible course towards resolution. 


A Divorce Mediator’s “Divorce Don’ts” Guide (So You Can Do It Better): Divorce Don't #2

02 Feb, 2021
Sometimes a hateful marriage can lead to a love affair with your divorce. Yes, really. Although divorce is a sad and traumatic experience for most, it can also be the start of new journey of freedom, independence, and autonomy. For some, having been diminished and silenced in an unhappy and overbearing marriage, divorce is liberating and empowering. While there is absolutely nothing wrong with doing a little ‘good riddance to bad rubbish’ dance and enjoying a little tryst with your divorce, take heed not to make it a long-term commitment. Edith and Merwyn have been married for over 30 years. They have three grown children together. In the early years of their marriage, Merwyn worked long hours and had an almost singular focus on all things work-related. After their first child was born, Edith reduced her work hours to part-time to devote more time to their son’s care. By baby #3, it was clear that between Edith’s part-time work schedule and Merwyn’s ‘round the clock workstyle, they needed a little help. Edith interviewed 30 local nannies in the span of two weeks. None of them fit. Edith expanded her search scope and eventually found Ariel, a young 20-something living overseas, that Edith felt she could trust with her three young children. Edith hired an immigration attorney to help with the visa requirements and paid for Ariel’s flight and moving expenses. The children loved Ariel who proved to be a big help around the house as well. To help Ariel adjust to her new American life, Edith paid for English tutoring lessons and introduced Ariel to her friends and her younger generation extended family. Edith and Ariel became good friends and, eventually, it was as if Ariel was family. When Merwyn left Edith for Ariel a few days after their youngest child’s 18th birthday, Edith was completely blind-sighted. Heartbroken, humiliated and betrayed, Edith was determined that she would make Merwyn pay for all the pain he’s caused her. She retired early from her job, determined to devote all her time and energy to preparing her divorce battle. She directed her attorneys to leave no stone unturned. Merwyn remained unapologetic and narcissistic. Refusing to be relegated to a defensive position, Merwyn responded to Edith’s tactics with an equally aggressive and litigious offense. Ultimately, the case was concluded by a two week trial. It has now been five years since their divorce was finalized and there have been three post-judgment proceedings. Their youngest child is now in law school. He hasn’t spoken to Merwyn since Merwyn moved out of the family home. In the time since the separation, the other two children have gotten married. The weddings were uncomfortable and stressful affairs for both parties and their children. Merwyn and Edith are expecting their first grandchild in the Fall, the week before their latest post-judgment hearing for modification of spousal support. Did I forget to mention the outcome of the trial? Not really. The parties were saddled with more years’ of post-judgment litigation, bitterness and pain. When engaged in a particularly painful and potentially high conflict separation, it is helpful to develop a two-pronged goals perspective. From a micro perspective, focus on the interests underlying the issues of your divorce (i.e. custody, property, and support issues) and set your current goals in accordance with those interests. From a macro perspective, focus on future goals and big picture interests. For example, if your macro goal is to be able to be in the same room with your former spouse, without being overcome with anger, hurt, shame or guilt, tailor you actions and develop strat egies for achieving this. Curious about other Divorce Don’ts? Check out our upcoming blogpost for Divorce Don’t #3: Don’t Delegate Your Divorce”.

A Divorce Mediator’s “Divorce Don’ts” Guide 
(So You Can Do It Better): Divorce Don't #1

29 Jan, 2021
Divorce Don’t #1: Don’t Be a Rights Fighter. Don’t let your perception of what’s “right” and your “rights” overshadow and overtake your goals. Being overly principled and a “rights fighter” will fuel your energies in your divorce battle. But know that proclamations of right/wrong and good/bad inevitably invite offensive and defensive response tactics from the other side. War tactics come at great cost; some people can spend their entire divorce budget on one motion. The Stevenson family lives in an upscale Los Angeles suburb. The Stevensons have recently separated and have started discussing how to handle the logistics of their separation and modest finances (moving out, telling the kids, splitting the debt, selling the house, etc.). Recently, seven-year-old Julia has been exhibiting behavioral issues in class. Julia’s teacher reached out to her parents, Mary and Jonathan, to address Julia’s behaviors and consider different options for help. Mary and Jonathan cannot agree on which option to choose. Mary wants to try some non-interventionist options, like yoga and changes to diet; Jonathan wants to enlist the assistance of a therapist. Mary is vehemently opposed to mental health interventions. After hearing that Jonathan met with a therapist for a consultation without her, Mary calls a lawyer. After retaining the lawyer, Mary spends two hours in his office discussing the issue in detail. Mary instructs her lawyer to proceed with a motion seeking sole legal custody of Julia, or in the alternative, sole decision-making authority for all mental health-related decisions. Mary’s lawyer spends 3 hours preparing motion materials (in California, a family law motion is known as a Request for Order). Mary augments some facts in support of her request. After a further one-hour meeting, Mary’s lawyer revises the paperwork to add the new facts and apply them to her legal arguments (1.5 hours). She then sends it to the Court for filing and serves Jonathan with the motion. Mary’s lawyer has already spent 7.5 hours on her case, which at $500 per hour, calculates to a $3,750 legal bill. On receiving Mary’s motion, Jonathan is incensed. He spends days stewing in disbelief and rage over Mary’s narrative, which he thinks relegates his fatherly role to nothing more than chauffeur and short-order cook. Jonathan calls three divorced dads he knows for advice. He’s referred to a lawyer his friends think is a real ‘shark’. Jonathan meets with the lawyer, who prepares a response and, after a few drafts, files and serves the Response on Mary’s lawyer, who prepares and serves a “Reply.” Jonathan’s fees to this point are $6,000 and Mary’s fees, inclusive of the Reply, now total $6,500. In other words, together, Mary and Jonathan have already cumulatively spent $12,500. They are still 6 weeks away from their hearing date. By the date of the hearing, Mary and Jonathan have each spent another $2,000, on telephone calls to their respective lawyers and the lawyers’ telephone calls to one another trying to negotiate an out of court settlement, bringing their total combined legal fees to $16,500 . Tensions in the home have gotten pretty bad and Mary and Jonathan can no longer stand to be in the other’s presence. Julia’s behaviors have gotten worse and her grades have suffered. She has also taken to biting her nails and the skin on her fingertips. Julia has also been experiencing nightly nightmares. Mary now sleeps with Julia at night in effort to help calm her. Jonathan thinks this is hindering Julia’s ability to self-regulate and exacerbating her anxieties. He asks his lawyer to prepare a supplemental declaration to inform the judge of these new facts and developments. Mary, of course, prepares her own responding supplemental declaration. The current total combined legal fees are now $19,000. On the date of the hearing, the motion is continued to a new date. The new current total combined legal fees are $21,000. The case is eventually heard on the new motion date at 11:30 a.m. and is argued in the span of 30 minutes. The judge takes the matter upon submission and reserves her decision. The combined total legal fees are now $25,000 and, by the time they receive the judge’s decision two weeks later, it is over $27,000. Julia’s behaviors have continued to escalate. Her nail biting has caused a finger fungus for which she is now being medicated. Jonathan has moved out and has recently motioned the court for an order for the immediate sale of the family residence. If, after reading the above vignette, you find yourself wondering, “Who won?” instead of “Does anyone really win?”, you may be a rights fighter and you may be at risk of dragging out the length and increasing the cost and conflict of your divorce (without even trying). You will recall from the start of this vignette that Mary and Jonathan have modest assets and current debt. They also have a child who has evidenced some new troubling patterns that need to be addressed. When the issue with Julia arose, Mary and Jonathan had different opinions about how to best address it, but they shared a common interest. Mary and Jonathan wanted to help their daughter. By focusing on this mutual goal, Mary and Jonathan could have had a dialogue and brainstormed all options together. While it is unlikely that either would have convinced the other that his/her opinion was right, they would have at least had the opportunity to properly consider all options, including the option they both ultimately chose – a costly and lengthy court battle. The risks of the ultimately chosen path included enormous family financial cost, which resulted in decreased family resources. It also delayed Julia receiving any help at all for some time, which exacerbated the problem. Curious about other Divorce Don’ts? Check out our upcoming post for Divorce Don’t #2: “Don’t Get Married… To Your Divorce"

Online Mediation: The Good, The Bad and the Necessary

By Jennifer Winestone • 11 Apr, 2020
With safer-at-home ordinances, court closures, increased stress, anxiety, uncertainty and changes of circumstance, mediation has become an increasingly important dispute resolution process for many families dealing with conflict (old and new). With most mediations now proceeding virtually, via Zoom and other videoconferencing platforms, there are a lot of articles and advertisements touting virtual mediation as the brave new frontier of dispute resolution. Online Mediation has many positive attributes. It also carries challenges and risks different from those in a face-to-face process. It’s important to consider both the benefits and the challenges to this form of process, so you can be better able to mitigate the risks and engage in as productive process as possible in the circumstances. So, here it is: the good, the bad…and the necessary. The Good: Flexibility and Convenience: There is no doubt that remote mediations are convenient. Your mediation is facilitated from the comfort of your own home, allowing broader flexibility of schedules and access to your professional. No more fighting traffic for an hour each way for that two hour session at the mediator’s office. In fact, parties will have more options for choice of mediator since they won’t be limited by mediator location. Technology Tools: Online mediation platforms can allow for face to face virtual contact, while also allowing the mediator to share their screen when running support calculations, preparing draft provisions, and listing issues and proposals on a virtual “white board”. If agreed between participants, parties can screenshot, record, and transmit/share documents and proposals in real time, adding to efficiency of process (no excuses for forgotten documents ‘at home’) and active engagement (no need for note taking and less opportunity for mistaken recollection of events). No Childcare: Online sessions do not require coordination or cost of babysitters. Parties can arrange a private space for the session, while caring for their children at home. Of course, the children must not be in earshot of the session and the custodial parent must ensure safe play is possible without the need for supervision. In some cases, sessions might even be scheduled after bedtime or during naps. Built-In Security: Family dynamics are complex and screenings for domestic violence and physical safety in mediations are imperfect. In circumstances where parties are not living in the same house, computer screens provide a natural physical safety barrier. The Bad: Confidentiality Breaches: With online mediations, the mediator has less control of the peripheral space beyond the speaker view. Accordingly, it is possible that, despite the confidentiality rules and the commitments of the parties, unpermitted observers could be in the room during a confidential session. Hackers: Cyberattacks, like Zoombombing (when an unwanted guest joins the videoconference), can raise a serious threat to the confidentiality of the process, privacy of the parties, and security of their personal and financial information. Communication Limitations: Experts state that over 80% of communication is nonverbal (some say it’s more than 90%). Online mediation is limited in its ability to provide participants with a complete communication canvas, which can limit the mediator’s ability to interpret party cues and optimally facilitate their communications and negotiations. Distractions: Participants engaging in an online mediation may more easily become distracted by incoming texts, emails and outside noise. A party may even self-distract as a form of passive and defiant disengagement from the negotiations. It may be difficult for the mediator to pick up on a party’s disengagement in an online session, impacting productive communications. Bandwidth Disruptions: The internet is working on overdrive these days. Low bandwidth and other technology glitches can significantly impact the effectiveness of a mediation, interrupting the flow of the process and momentum of the parties. The Necessary: Unless your conflict can wait out the current crisis, online mediation may be the only form of mediation process available to you right now. Even after the social distancing restrictions have lifted, it may be some time before parties are opting for in-person meetings again. There are no perfection guarantees in any process and, with advance planning, many pitfalls can be minimized or avoided. When preparing for your online mediation session, ensure your mediator has set ground rules for confidentiality and party commitment to participation from a private and quiet space. Mediation confidentiality ought to be reiterated at the start of each session. If a participant or the mediator believes someone else may be in the room or within hearing, the session should be terminated and reconvened at a later time when confidentiality can be better secured. The mediator should use a unique meeting password and upgraded subscription plan in order to provide additional account security from potential hackers. The mediator should also continuously monitor the participants screens and end the session immediately upon the entry of an uninvited guest. Distractions can be limited by turning off notifications in your settings and asking that all participants do the same. Like with confidentiality, reiteration of the tenets of the mediation process (i.e. voluntariness and self-determination) can help to remind parties that they are in control of the ultimate decisions made and, accordingly, party participation is crucial to a successful process. Bandwidth disruptions and other technological glitches may be largely unavoidable, however can be managed by putting a contingency plan in place prior to the session (i.e. continuing the session via audio conference call; setting a backup continuance date/time; etc.). Plan with detail: If we lose connection, who will be re-initiating the call? How will the mediator be discounting time lost due to technology failures? Facilitation of party communication through a screen may be more limited than in-person, but the limitations can be mitigated through the increased use of tools, like caucus (single sessions), for checking in with individual parties for feeling, engagement and comfort level. Online tools like “breakout rooms” provide an easy transition to caucus. No matter the real or perceived limitations of online mediation, the benefits of an available consensual dispute resolution process in the current crisis far outweigh the challenges. Recognizing both the ‘good’ and the ‘bad’ allows parties to maximize advantages and plan for potential challenges, optimizing their potential for resolution.
More Posts
Share by: