Family Courts’ Severe Backlog and the Presiding Judge’s Recommendation to Use the Collaborative Process

For those of you who have appeared in court recently, you may have experienced numerous delays from the courts. Previously, hearing dates were obtained approximately 4 weeks from the day the request was filed at the courthouse. Now it may take 2 months to obtain a hearing on a child support, custody, visitation or other request. When you finally appear at your court hearing, there are many reasons why your judge may postpone your hearing, such as one party has not completed their documents, or an attorney for the child may be appointed. When a hearing date is continued, it may take anywhere from 2 to 6 months to obtain the continuance date. This can happen many times just to obtain one court ruling.

After months or years of hearing dates for the court to make temporary orders pending trial, eventually the court will schedule a trial date. When a party finally requests a trial date, it will likely take 3 to 12 months (or more) to obtain the first date of the trial, followed by more trial dates spread out over several months. It is not uncommon for a family law case to take between 2 and 5 years in the court system.

Unfortunately, the court process takes longer than ever with the recent budget cuts. As a result of the severe backlog, Los Angeles Superior Court family law’s Presiding Judge Marjorie Steinberg sends out a letter with every petition filed. In her letter, Judge Steinberg informs the parties of the limited court resources and recommends that parties resolve their cases by using the collaborative process. Using the collaborative process keeps parties and their attorneys out of the courtroom which enables their case to be resolved relatively quickly and in a far less costly manner.

Luckily, if you have commenced your case in court, that does not preclude you from later choosing the collaborative process. It’s not too late to contact a collaborative professional and schedule a consultation to see if collaborative law is right for your case.

By Leslie K. Howell, Esq.
Law Offices of Howell & Howell, APC
http://www.howellfamilylaw.com

Choosing a Lawyer and a Process for your Divorce

The stress of a divorce comes second only to the death of a spouse. Moreover, when it comes to divorce, certain aspects of loss become slightly magnified because a person is able to act out against the other person who was involved in that relationship. The emotional state caused by the divorce process often causes people to experience impaired judgment, which makes it difficult or impossible for them to make rational decisions. They tend to forget that a family typically consists of two parents and their children and that the familial relationship does not end along with the marriage. Furthermore, people tend to deal with things, including divorce, in a manner which is familiar to them. In the case of a divorce, the familiar is going to war with each other in the courtroom (the family law court).

Often times, friends and family members are more than happy to refer the attorney that “successfully” represented them in a divorce case. Before blindly accepting such advice, it might be wise to ask the following questions: What have the familial relations been since the conclusion of that divorce? Have the parents had ongoing problems with each other with regard to the parenting and/or support of their children? When the child graduates from high school or graduate school, will the parents be able to attend the graduation party together for the sake of their child? When the child has a family of their own and wants to have a holiday event at their home, will both parents be able to attend that event? After learning the answers to these questions, you might decide that the divorce was not so “successful” after all.

Albert Einstein once described insanity as “doing the same thing over and over again and expecting different results.” Family law as currently practiced is toxic because, among other things, it destroys families. If the manner in which a person opts to divorce tends to be destructive of familial relations and the person expects a different result, is that a sane decision, or is that proof of the fact that the person is incapable of making rational decisions because of his/her emotional state?

Justice Sandra Day O’Connor has recently said, “I have been a strong advocate for alternative dispute resolution ever since I was a state court judge.” In 1984, Warren Berger, then Chief Justice of the United States Supreme Court, while speaking about the American legal system to members of the American Bar Association, said “Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving claims is a mistake that must be corrected.” Chief Justice Berger also stated that “The obligation of our profession is, or has long been thought to be, to serve as healers of human conflicts.”

A collaborative divorce is much like a mediation wherein the spouses each have separate legal representatives, but without the mediator. The reason that the parties do not require a mediator is that the attorneys involved have been trained in the collaborative process. It would therefore be unlikely that any of the attorneys involved would be of the “pit bull” variety. In collaborative divorce, a team is assembled of specially trained attorneys, mental health professionals, and a neutral financial specialist to assist spouses when working out sensitive custody and financial issues. A collaborative divorce may be the perfect solution for a couple whose marriage is ending and who truly value family. Most of us say that we believe in family values, but do we really mean what we say? After all, “actions speak louder than words.”

Mark B. Baer, Esq.

MARK B. BAER, INC., a Professional Law Corporation, Pasadena, CA

Set Up Your Collaborative Case For Success!

Will the collaborative process work for you? It would be disappointing and expensive to end the collaborative process because you and your partner were unable to reach an agreement...

Understanding your point of view and your partner's point of view toward decision making can help your coach and attorney assess the likelihood of success. It will also help them prepare for difficulties in the process, so the team is aware of dynamics that can otherwise impede the process.

Following are some questions to ask yourself that will clarify your positions and interests, providing you with a greater likelihood that the process will work as it is designed to:

• Are you able to look at a problem from your partner's point of view?
• Are you intimidated by your partner?
• Are you willing to let go of short-term or inconsequential goals in order to reach your primary goal?
  
• Are you willing to trust your partner if information is verified?
• Is it important to you to maintain a respectful relationship with your partner after the divorce?
• If you have children, is it important to you that the children maintain a strong and healthy relationship with both parents?
• Have you accepted the fact that the divorce will happen?

Understanding commitments around these issues will help the team work toward a positive result for you.

Kathleen O'Connor, Esq.

Alec Baldwin's Book, "A Promise to Ourselves"

I was given the book "A Promise to Ourselves" by actor Alec Baldwin to read. My friend said it was about his divorce, which took place in a circus-like atmosphere.

I read my copy of the book in an afternoon. I am not here to promote the book, nor do I agree with his perception of my co-professionals. However, I found that I do agree with his idea of how spouses should handle their own divorce -- that is, to think about using collaborative family law and/or mediation first, and pick the litigation arena as a last resort.

Litigation has its place, and might be the right choice to make in some circumstances. That said, there is wisdom in thinking that the parties themselves are better fit to share in decision-making about their own future and that of their children, rather than having a stranger in a black robe do it. I am challenged to understand how such smart, rational-thinking adults, who have loved each other for years, cannot remain unified and focused for awhile longer to decide what is best and right for themselves and their families.

Consensual Dispute Resolution (formerly known as "Alternate Dispute Resolution") allows ways for people to continue to contribute and co-participate in the restructuring of their families. Although the family is changing its formulation, it continues to have intimate connections. Family life cycle events will continue past the divorce. Participating in consensual dispute resolution helps parties move away from this difficult episode in their lives to a future of greater hope and better expectations --for themselves and for their families.

Respectfully submitted,
Steven B. Garelick (CPA, ABV, CVA, CFS, Mediator)
Partner, Senior Litigation Case Manager
email: sgarelic@miod-cpa.com

THOUGHTS OF A COLLABORATIVE ATTORNEY

Let me tell you a bit about myself. I have had a family law practice in Pasadena, California for more than 22 years. I found litigation personally distasteful. I slowly transitioned my practice to settlement to the point where I now do 100% settlement, mostly mediation. Then, just when I thought there was nothing new under the sun, a new approach to divorce blossomed-- "Collaborative Divorce."

I see collaborative divorce as an approach to divorce that falls somewhere between mediation and litigation. It is particularly beneficial when the emotions and tensions between husband and wife make sitting together at a mediation table next to impossible. It is also a valuable option when there are complex financial issues or highly charged custody issues.

The great thing about collaborative divorce is that both the husband and the wife will be represented by their own attorney, but with a twist: as part of that representation, there is the added requirement that each of these attorneys guarantees that he or she will not bring the matter into Court. The client therefore can be assured that his/her respective attorney has no hidden agenda to go to court. Each attorney's sole focus is on using her/his best skills to assist the parties in resolving their issues through settlement.

The added ingenuity of the collaborative approach is that other professionals can be brought into the process and become part of the team, with the mutual goal of bringing the couple through the divorce process in a humane and efficient way. These additional professionals usually are therapists and accountants. The husband and wife, with the help of the attorneys, decide the make-up of their collaborative team. It may be just two attorneys, or those attorneys plus one therapist acting as a neutral mental health professional (coach) helping with both parties, or each party having his/her own therapist (coach), and sometimes an additional therapist representing only the interests of the children (child specialist). Similar combinations can be employed in retaining financial professionals.

The bottom line is that in my opinion you will usually be better off if you resolve the divorce issues through negotiation and settlement. Collaborative Divorce is a sensible, cost effective method of reaching this goal and any minor children will certainly reap the benefit of their parents taking this more peaceful approach.

Anthony J. Hill, Esq.

Why a Collaborative Divorce is Better for Those who Seek ANONYMITY

One significant contrast between a case litigated in the court system and a Collaborative agreement merely submitted for signatures is the anonymity provided the parties in the process. Many divorce lawyers advise their clients to say vile things about the other parent to sway the sympathies of the judge. These attorneys are most comfortable arguing the case. Without a thought to the impact on the children (or even the parties, who, after all, once loved each other) they create these abusive declarations to be signed by their client and filed in the public court file.

For example, in a custody dispute, the judge would want to hear evidence of any history of drug or alcohol abuse, physical or emotional abuse, and any other factors the court deems relevant. The law on this can be misused, and often is, since it is left to the judge to weigh all the factors and determine a parenting plan in the best interest of the child.

That is right--anyone who cares to can look into a court file and see what steps were taken through the divorce process. A child entering the courthouse will not be barred from reading the content of the pleadings, not will anyone else. The laws do not allow anyone to easily seal a file in any lawsuit, even one so sensitive as your divorce. In a California Collaborative Case, the file reader will see the initial stipulation that the case is collaborative. The reader will see the final agreed-to judgment with the signature of each party, team members and the judge. Only.

During the Collaborative case, the parties may have had to confront real, wrenching disputes. They may have thrown harsh accusations against the other party. With the help of their coaches, they also may have taken those very difficult confrontations and turned them to good use. Without any public display, they may learn how best to communicate and co-parent in their newly reconfigured family.

Of course, not everyone needs the Collaborative case and the anonymity it affords for this sort of reason. Many simply prefer the control over the result and the speed they can have in a Collaborative case.

Anonymously submitted by a member of Pasadena Collaborative Divorce

Why Do We Do Collaborative Law?

I speak for myself, but I have read a great deal of what other practitioners have to say and have sat in numerous seminars that examine collaborative practice. Please read my profile. If you want to know why I think Collaborative Law works, read on.

Dissolutions of marriage (divorce) are the cases I handle most often. We have a political (budget) problem. A smart person said: The law is "extraordinarily complex, the stakes in family law cases are high, and the court system has failed to allocate sufficient resources to keep caseloads realistic. Despite the importance, complexity and volume, family law departments don't have the clout to get the appropriate share of the court budgets." (Leslie E. Shear)

So, we look for solutions outside the court system. We want the solutions to be fair. Those of us who were trained to be lawyers in the seventies were not given tools that can reliably result in fairness in all cases. Some attorneys trained in later years were trained to mediate issues as well as litigate, but still, that whole process has still been squeezed to fit within the traditional system.

Some of us have trained and continue to train in Collaborative Law because we see that the traditional system fails our clients. The adversarial process often exacerbates the injury a divorcing person feels.

The issues are: how to share time to parent the child(ren), how to provide financial support for children and for spouse, how to account for and divide assets and debts, including the costs of litigation. These are the issues I was taught were all the issues that mattered in a divorce case. When we go to court, these are the only categories of issues that matter. How a spouse feels, about fairness or otherwise, is irrelevant.

A court of appeals once said dissolution of marriage "is, in the mathematical sense, a negative-sum game where each party will not have the same access to the whole of the marital property he or she had during the marriage."

"Things are not always as complicated as they are made to be." (Kathryn M. Fitzgerald) That is, when things can go simply, they sometimes take a more difficult path. Issues in divorce and other cases often blow up because of outside pressure. But, they can also be contained, if we look for creative ways to solve problems.

The children were fighting over the last orange; each wanted it. They had been brought up to understand compromise, so the elder carefully sliced the fruit in half. The younger ran outdoors, turned the peel inside out and greedily sucked out the juice and ate up the pulp. He tossed the peel in the garbage. His older sister, meanwhile, pared the zest from her half and used it in the orange icing she was making for a cake. She did not need the pulp or the juice, so she put that in the kitchen waste. If only they had each known what the other wanted, each could have gotten 100%.

Ask yourself, do we have a stake in the outcome such that we can work together toward solutions? If your answer is yes, the Collaborative process will work.

President Barack Obama is the person the United States elected as our representative because of his extraordinary ability to speak about empathy and understanding. He wrote: "...another tradition to politics, a tradition that stretched from the days of the country's founding to the glory of the civil rights movement, a tradition based on the simple idea that we have a stake in one another, and that what binds us together is greater than what drives us apart, and that if enough people believe in the truth of that proposition and act on it, then we might not solve every problem, but we can get something meaningful done."

by Kathryn M. Fitzgerald, CFLS (Certified by the State Bar of California Board of Legal Specialization as a Family Law Specialist, since 1994.)