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Honest, Blunt & Brilliant: “A” Stood for Alternative

Ron and Robert caught up with Attorney Leslie Ellen Shear at the Pepperdine Law School Consensual Dispute Resolution seminar in 2010. Leslie Ellen Shear is a graduate of UCLA Law School, a Board Certified Family Law Specialist, a Certified Appellate Law Specialist, and the author of numerous published opinions. Ron and Robert have known her for over twenty-five years and she is a deeply respected colleague. Honest, blunt, and brilliant, Leslie Ellen Shear is a true powerhouse.

In the first of this four-part series, Attorney Shear discusses the shift from Alternative Dispute Resolution (ADR) to Consensual Dispute Resolution (CDR), as well as the pros and cons of both CDR and the traditional adjudicative legal system.

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Subscribe to Ron and Robert on Divorce on iTunes and tune in next week for Honest, Blunt, and Brilliant: Child Development.

Learn more about Leslie Ellen Shear at CustodyMatters.com.

Why We Collaborate (Part 4 of 5)

By Ty Supancic, Esquire

Leading By Example

One of our goals is to instill in our clients those skills they will need to navigate future controversy and conflict without allowing it to escalate to the level of litigation. We must teach our clients that oftentimes the best solution is not one of the choices presented. Often, the best solution is something neither side can see nor has considered. When you’re digging trenches and getting ready to exchange fire, you don’t always have time to step back and survey the landscape. In fact, any delay may result in your becoming a casualty of the conflict. “Strike first and furiously”.

The traditional fight or flight attitude and belief system, so fundamental to zealous advocacy, are anathema to effective CDR. Parties truly interested and committed to finding a low-cost, low-impact solution to their conflict can find their process instantly and irrevocably derailed by the argumentative fighting instinct honed by their attorney after years of argument and litigation.

It is so important that we nurture, foster, and maintain the collaborative mindset that we must even change our language. In our Collaborative cases, there are no “opposing party” or “opposing counsel.” Not even in our notes. We labor to use the terms Collaborative Counsel (abbreviated “Cola” in our notes) and we try to use the parties’ first names at all times. We want our notes and our letters and our files to reflect this radical new way of thinking. Collaboration does not yet make up the majority of our case load so our other files use traditional terms, but as soon as we open a Collaborative file, the language we’ve used should help to place us in the right mindset – the only mindset that supports the scope of representation for which we were retained in a Collaborative case.

Likewise, we labor to use neutral terms and first names in our mediation cases. We labor to insure that our correspondence and notes are neutral on their face. All correspondence is addressed to both parties in mediation. We alternate parties in the greetings from letter to letter and we even alternate the return addresses at the top of the page. Typically, if wife’s address appears on the left and husband’s on the right, or wife’s on top and husband’s underneath, we reverse the greeting so the party “billed” first is greeted second. In our next letter, both are reversed.

Check back soon to catch the final part in this wonderful series…

Missed the first three?

Part 1 – Why We Collaborate and Collaborative Problem Solving
Part 2 – The Collaborative Paradigm
Part 3 – Changing Our Paradigm
Part 4 – Leading By Example
Part 5 – God is in the Details

Bookmark This

This is a service offered in Los Angeles that you don’t want to miss:

From their website:

211 LA County is a private, nonprofit 501(c)(3) organization, formerly known as INFO LINE of Los Angeles. It is the largest information and referral (I&R) service in the nation, helping approximately 500,000 individuals and families in Los Angeles County each year, and is recognized nationally, throughout the state, and in Canada for its leadership in the field. Since 1981, 211 LA County has provided free, confidential services 24 hours a day, 7 days a week in English, Spanish and more than 140 other languages via a tele-interpreting service. Services are also provided for individuals with hearing impairments.

Our service functions as a gateway to the county’s vast and complex social service delivery system. 211 LA County links ALL Los Angeles County residents to services that strengthen families and improve their economic success; equips them to prepare their children for school; helps them find and keep jobs with opportunities for advancement; helps them identify and gain access to public benefits and subsidies; and increases their access to quality health care. Professional community resource advisors help callers with critical issues such as health care and substance abuse, domestic violence, shelter, food, legal and financial assistance, programs for children and seniors and different types of mental health services. Our community resource database contains information on over 49,000 programs and services and is continuously being updated to ensure that we provide the most current and accurate information possible.

If you need their services but haven’t yet reached out to them, don’t wait. Dial 2-1-1 and call now.

Zen and the Art of Handling Divorce

Photo courtesy of FreeFoto.com

One of our goals at The Law Collaborative is to support the professionals who assist families in crisis in creating and maintaining collaborative practices. We believe that the California Family Law system as it stands today is destructive and harmful to families in transition, and we work every day to make a difference.  That said, when we find other professionals in the U.S. who are working just as hard as we are to create a kinder, gentler way for families to reorganize in the face of divorce, we like to send them a little love.

Today we’d like to point you in the direction of Nanci Smith, a family law attorney in Vermont who advocates for Collaborative Law and Mediation. From an article by Mel Huff of the Times Argus Staff:

A former client characterizes her approach as “Zen,” although Smith says she wouldn’t call
it Zen with a capital Z. She explains what she does as “trying to help people get through the
divorce process, or civil union dissolution process, purposefully, mindfully and as humanely
as possible, given the circumstances.”

Sometimes, however, what people want is for their lawyer to be their gladiator or pit bull or
their shark. “That’s under-standable,” Smith says, “because divorce is so overwhelming. It’s
as if there’s a death in the family, except nobody is bringing food. It’s a great loss. There’s
sadness and anger and regret and fear. You have to work through all of those emotions to
get to acceptance, and hopefully, a sense of freedom at the end.”

If a couple can preserve some sense of decency, she says, they can move on “without
ruining their relationship with somebody they once loved.” Choosing the “warrior path,” on the other hand, can lead to a process that is “indecent and cruel and vicious.”

Read the full article here…

Why We Collaborate (Part 3 of 5)

By Ty Supancic, Esquire

Changing Our Paradigm

We believe that in order to excel as masters of collaborative methods and techniques, we must apply them as often as possible. Given that the vast majority of our waking time is spent at work, work is the best place to develop and exercise these new skills. To that end, we have a unique management structure at TLC. The vast majority of law firms and businesses in general are ruled by a hierarchical system; managing partners supervising partners, supervising associates, etc. The classic “top down management” system. At TLC we practice a heterarchical system of management. That is, we collaborate in office management decisions and day-to-day operations.

At TLC we have group meetings where we attempt to solve problems and make decisions collaboratively. Rather than one person dictating the color of the paper for a particular form , we try to choose the color collaboratively. Rather than just the partners or a committee writing the mission statement, firm values, and the procedures manual, the whole staff painstakingly collaborated on everything. One thing we’ve learned is that a decision which one person can make in an instant, may take hours to make collaboratively.

Collaboration is not the quickest method of problem solving. If measuring only time, it is not at all efficient. But if the desired outcome is one with profound long-term impact, it is the most effective method. The time we spend collaborating on internal office issues is an investment in developing collaborative skills and instincts. They say that when all you have is a hammer, every problem looks like a nail. Collaborating with your co-workers all day is like standing in front of a great tool chest with all the drawers open.

If we are to become masters of this new technology, this technology so foreign to professionals trained and indoctrinated in adversarial and positional dispute resolution, it must become our second nature. No, it must become our first nature. Sensitive matters may not withstand a non-collaborative or aggressive response to a problem. Since either party can unilaterally withdraw from the Collaborative process and disqualify both attorneys from further representation, each response to conflict must originate from the right mindset.

If an attorney is sitting at her desk, making unilateral decisions, dictating procedure, making hierarchical demands, she is not in the right mindset to deal with a call from her client or opposing counsel on a Collaborative case. It is too easy to fall back into habits which do not foster or support collaboration. We can easily take a case sideways with just a few words coming from the wrong mindset. How can we expect our clients and opposing counsel to “collaborate” when the stakes are high if we can’t collaborate in the low-stakes day-to-day operation of our office?

We have seen Collaborative Law cases, where well-intentioned parties have made significant progress, unravel due to “good” traditional lawyering. In order to negotiate the minefield of conflict, one must proceed with caution at all times. Instinct and gut reactions are important, but they must originate in a place of commitment to the goals expressed by the parties. An attorney who is representing a party in a CDR case must remember that the scope of their representation requires that they adhere to good CDR protocols. Ignoring that fact ignores the scope of representation and violates the rules of professional conduct.

We’ve heard opposition to this approach; “What about your litigated cases, won’t they suffer? Won’t you lose your edge?” No, old instincts are hard to kill. Trying to think collaboratively all the time does nothing to dull our deep inbred fight or flight instinct.

Part 1 – Why We Collaborate and Collaborative Problem Solving
Part 2 – The Collaborative Paradigm
Part 3 – Changing Our Paradigm
Part 4 – Leading By Example
Part 5 – God is in the Details

Secondhand Smoke and Children

An article from the Physics Department at Kansas State University, with additional information from the EPA.

Photo courtesy of FreeFoto.com

Exposure to secondhand smoke is a decision that children cannot make, which is why adults need the facts on the health risks of exposing children to secondhand smoke.

INVOLUNTARY SMOKE OR SECONDHAND SMOKE DEFINITION:

— In 1993, the United States Environmental Protection Agency (EPA) declared secondhand smoke a known human carcinogen, responsible for several thousand cases of lung cancer in nonsmokers each year.

— Involuntary smoke is one of only about a dozen other environmental pollutants in this risk category [known carcinogen as opposed to possible or probably carcinogen.] Others include radon, arsenic, asbestos, and vinyl chloride.

SECONDHAND SMOKE HURTS CHILDREN

Cigarette smoke has many poisons.  Carbon monoxide is one deadly poison in cigarette smoke. This poison builds up in closed places like rooms and cars.  Many parents think that if their child is not in the same room as the smoker, the child will not breathe the smoke.  That is not true. There is no safe way to smoke indoors.  No matter where in the house you smoke, your child still breathes the smoke and it’s poisons.  The effects on your child’s health can last a lifetime.

HEALTH RISKS TO CHILDREN:

Children exposed to secondhand smoke are more likely to have reduced lung function.

Children of parents who smoke half a pack a day or more are at nearly double the risk of hospitalization for a respiratory illness.

Exposure to secondhand smoke increases the risk for Sudden Infant Death Syndrome.

Secondhand smoke exposure increases the risk of lower respiratory tract infections such as bronchitis and pneumonia. EPA estimates that between 150,000 and 300,000 of these cases annually in infants and young children up to 18 months of age are attributable to exposure to secondhand smoke. Of these, between 7,500 and 15,000 will result in hospitalization.

Secondhand smoke exposure increases the prevalence of fluid in the middle ear, a sign of chronic middle ear disease.

Secondhand smoke exposure increases the frequency of episodes and severity of symptoms in asthmatic children. The report estimates that 200,000 to 1,000,000 asthmatic children have their condition worsened by exposure to environmental tobacco smoke.

Secondhand smoke exposure is a risk factor for new cases of asthma in children who have not previously displayed symptoms.

Schelb v. Stein

From the Los Angeles County Bar Association Daily E-briefs:

Trust deed securing a promissory note issued in connection with a family law judgment may expire under provisions of the Marketable Record Title Act, despite Family Code Sec. 291, which provides that a family law judgment is enforceable until paid in full. MRTA and Sec. 291 do not conflict because a debt evidenced by a note and secured by a deed of trust is still owed even after the note expires under MRTA and the deed of trust is no longer enforceable. Application of Sec. 291 to a judgment entered prior to the section’s effective date did not substantially interfere with debtor’s rights where enforcement of that judgment would not have been subject to a time limitation under prior law.

Schelb v. Stein

What that means in plainer English is, if you have an unfulfilled obligation owed to you under a judgment, you should meet with an attorney as soon as possible to discuss your options for enforcing your interests and collecting the debt.  Any delay could result in the forfeiture of your security interest in real property or could prevent you from collecting on the debt you are owed.

In even plainer English:  If somebody owes you money and is not current in making their payments, speak with an attorney as soon as possible.

Why We Collaborate (Part 2 of 5)

By Ty Supancic, Esquire

The Collaborative Paradigm

In traditional litigation, each side in court must take a position, usually in opposition to the other side. In theory, the “trier of fact” is wiser than his litigants, and only after an intelligent and thoughtful review each side’s position, can the judge administer “justice”. We all know that true justice is rarely the result. Judges are never as familiar as the parties are when it comes to the intricacies of their circumstances. Sometimes the judge may not even understand the underlying law. The resulting “justice” is sometimes really just a partially informed third party’s opinion.

In Collaboration, solutions are not dictated to the parties, but arrived at by the parties themselves. The parties are not made to take positions, but are asked about goals and outcomes. Negotiating from the outcome rather than the position allows for creative problem solving. Oftentimes creative solutions present themselves where no solution seemed possible. Rather than the litigation model’s “winner take all” result, Collaboration can result in a true win/win solution.

Furthermore, since the parties play an active role in the problem solving process, they are usually much more satisfied with the results even if they might not have been otherwise. The parties are able to “own” the results since they controlled the process.

In order to be most effective, collaboration should really be an end unto itself. Many controversies and conflicts are ongoing issues with ever-changing and evolving facts and situations (e.g. child custody, support, or disability). As long as parties remain in relationship (father/mother, employer/employee) the potential for controversy and conflict is never ending.

Ongoing controversies cannot be efficiently addressed by occasional saber rattling letters and threats of litigation. These only polarize the parties and may serve as a kind of “dare” to litigation. On the other hand, a continuing and constant application of Collaborative methods can prevent controversies from becoming conflicts. In our experience, Collaboration has proven to be the most cost effective and least destructive method of long term dispute prevention and resolution.

Part 1 – Why We Collaborate and Collaborative Problem Solving
Part 2 – The Collaborative Paradigm
Part 3 – Changing Our Paradigm
Part 4 – Leading By Example
Part 5 – God is in the Details

Enrolling the Reluctant Spouse

M. Marcy Jones is an author, speaker, lawyer, coach, and advocate for change. She lives in Lynchburg, Virginia and she writes a wonderful blog called Graceful Divorce Solutions – if you haven’t been over there yet, you should check it out today at GracefulDivorceSolutions.com.

A couple of weeks ago she posted an article about how to enroll a reluctant spouse in the collaborative process:

My client, Mary, came to see me a few months ago for a consultation. We went over her situation and her options, and she clearly expressed an interest in using the collaborative process. Her concern, though, was that her husband, Joe, was drinking a lot, not home very much, and she didn’t know how or when she would be able to talk to him about this option.

While every case is different, Jones gives some great ideas for how to get your spouse on the same page and, most importantly, how do it with kindness and dignity.

Mary Culbert’s ABCs of Mediation (Part 3 of 3)

Thanks to the new USA television show, Fairly Legal, mediation is getting a lot more attention than ever before. But how does it really work? In Part 3 of Mary Culbert’s ABCs of Mediation, Southern California’s own real life mediation guru takes listeners through a step-by-step guide to the mediation process.

Missed Parts 1 and 2?  Listen now:

Part 1: Mediation giant Mary Culbert discusses how her family history and a background in theatre paved the way to a career as a peacemaker.

Part 2: Every question you’ve ever had about mediation answered in a single podcast.

Don’t miss another episode! Subscribe to Ron and Robert on Divorce on iTunes.