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Using Court As A Last Resort: Advocacy Without Adversaries

By Jan Frankel Schau and Ronald Supancic

Just as you were getting used to the concept of Arbitration and Mediation as the common alternatives for resolving legal disputes, along comes “Collaborative Law.” Is it the talisman of future dispute resolution in America?

“Collaborative Law” is being widely used, particularly in Family Law settings globally. In fact, in many European countries, the Court system is only the last resort after all other so-called “Appropriate Dispute Resolution” alternatives are fully exploited. Like any new system, it will undoubtedly be met with some resistance from the Courts and the Bar. This article will explore the concept of “collaborative law” and other “appropriate” dispute resolution processes applicable to the civil case in Los Angeles County .

Ideally, most civil disputes could be resolved, (as they sometimes are in the family law arena) around the kitchen table. That is, the parties sit down together, break bread and make peace. They work out their disputes without the need for outside intervention. This is the first step in “Appropriate Dispute Resolution” – an earnest attempt for the parties to meet and resolve their differences informally.

Failing that, parties could and should retain a neutral dispute facilitator or manager: someone whom both parties could agree to hire to oversee collection and exchange of all the necessary facts in order to fairly evaluate and resolve the dispute. This individual would oversee depositions, collect documents and screen them for confidentiality claims, and keep the parties on a schedule for responding to one another’s requests and demands. This approach is not entirely novel: under the California Civil Code all new actions for defects in real estate construction by a Homeowner’s Association require retaining and using a Dispute Facilitator before filing a lawsuit.

Once the facts have been fully submitted and explored, a “conventional” mediation might be appropriate. There, each side would be able to present their version of the incident or claim, based upon the stipulated facts and exchanged evidence, and a neutral intermediary could actively engage the two sides in collaborating towards a resolution.

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Interview with a Superior Court Judge (Part 1 of 4)

Ron and Robert welcome special guest Thomas Trent Lewis, a sitting Superior Court Judge with over 28 years of experience as a family law attorney. Listen as these veteran family law professionals discuss their experiences in the courtroom. (Podcast #49 – Part 1 of 4)

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Tools and Resources

Most people walk into marriage with very limited understanding of what California family law is all about.  I keep a copy of the family code on my desk and I ask clients, do you have a premarital agreement? Most of the time people say no, they didn’t want to bother with that, they thought it was off-putting. What people don’t realize is that California has written a premarital agreement for you and it’s more than eight hundred pages long. If you haven’t read it, you’re in for a big surprise.

Listen to the newest podcast from Ron and Robert on Divorce — if you have questions, they have answers.

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Eggs Benedict and Case Law

Woody Allen tells a story about his friend, Eggs Benedict.  See, Eggs had a problem.  He thought he was having a heart attack because he was having chest pains, and Woody was having the same problem in the same chest area.  So he said, why don’t you go to the doctor, you pay the $25 for the medic, and you tell me what happens! And Eggs says, OK, and goes to the doctor.

A few days go by and Woody doesn’t hear a word from Eggs.  So he picks up the phone, he calls his friend’s mother and he says, Where’s Eggs? And she says, You haven’t heard? He died. Woody hangs up the phone, runs to the doctor, spends $100, gets all these tests and the doctor says, You’re fine. And Woody says, well I just don’t understand it. I have all the same chest pains that my friend had, I should be dead! So he calls up the mother and says, I just don’t understand it. Eggs said he had a chest pain, he went to the doctor, and he died. And the mother says, I know, it’s just awful. He was walking down the street, he’d just been to the doctor and the doctor said he was fine, and then he was hit by a bus.

The law is nebulous. It’s an entangled web of gray area and it changes all the time, so what you get is not necessarily what another person gets.  As lawyers it is our job to look at the facts carefully, we have to see what’s different in your case.  Just because your friend got a divorce last year and got the house doesn’t mean this year you’re going to get the house. The law is a flowing ebb and tide in water. It’s intangible.

Family law is codified in California and there are new cases all the time. How do people find out what the law is if they want to do it on their own?

Unfortunately, lawyers and legislature have made it difficult to do that. There are some areas of law that are black and white, but most areas of law are grey. When you have something like custody, where the best interest of a child is at stake, it’s not a question of who’s the better parent, it’s a question of what’s the best interest of the child? What is that standard? There are hundreds of cases that tell us that. And for as many cases on one side of an issue, there are the same number of cases on the other.

For a look at some recent cases, click here.

Trends in Family Law

People are astonished to learn that when Ron started practicing law in 1970, the family code was maybe a quarter inch of pages in the California Civil Code.  In the 1980’s the Family Code was two or three hundred pages.  Today it’s 850 pages and growing.  It’s about three inches thick and we get new statues twice a year.  We get new cases, which interpret the code, almost weekly.  Family law is one of the most highly litigated areas in civil law, and one of the most often appealed.  So it’s hard to say what the law is. You can say what it was. You can say what it is today. But who knows what it’s going to be tomorrow? That’s why we need Certified Family Law Specialists who can look at the law and give us an idea, not only of what the law is, but what the trends in the law are.

What are some of the current trends? One thing everyone’s talking about is, what is the future of a young child? If you have young children, the real issue is the movement of people. The economy is definitely changing where people are living. We have people moving to where they grew up or where they have the most family available to assist them. We’re seeing a lot of cases where a parent has to move for financial reasons, and in Los Angeles, even a move across town can completely disrupt a visitation schedule.  If you have to go court because you need to move ten miles for work, it’s up to the judge to decide whether or not the move is in your child’s best interest.  So in some cases the laws have to change to accommodate the current situation and your lawyer needs to know what the most recent changes in your favor are.

We’re seeing exponential growth in what is considered an asset. Thirty years ago it was a mere expectancy to have a pension plan. Today, it’s a major asset and can be missed if you’re not careful.  The same is true for insurance policies. Where once an insurance policy was just a term life policy, it now has some kind of value to it. It never had a value before, but now we can look at it and there are ways to value it.  Another area would be electronics and websites and artificial rights. When you own a copyright or trademark or patent, or you own software or you own music, it’s worth something now.  Once upon a time it wasn’t worth a lot, but look at Michael Jackson. Not a lot of cash flow, but an incredible amount of earning potential in a catalogue of music. We’ve both handled those kinds of cases where someone comes in and they have to value something that’s very difficult to value. It takes expertise outside of even the best lawyer to sit down and run through a catalogue of what those residual rights are worth. You have to have trusted neutral experts who can give you the best valuations.

When Ron started practicing in 1970, mothers always got custody, in every case. The only way a father could get custody was to prove that the mother was unfit. The mother had to be unfit. That law lasted through the eighties. It was taken out in 1976 but the judges continued to follow it as though it were there. It wasn’t until 1982 that we got joint custody. That was a huge change. We’ve seen huge changes in the law, but we still see disparities.

The Third Wednesday

Although it may be one of the best kept secrets of the Los Angeles Superior Court, the LACBA/SFVBA-sponsored Third Wednesday Voluntary Settlement Conference Program is designed to turn the misfortune of the current budget crisis into an opportunity to settle cases.  Each family law department in Los Angeles County may assign up to two cases each month to the VSC program, which provides three hours of free mediation on the third Wednesday of each month in the private office of an experienced family law attorney serving as a voluntary settlement officer.

In the event that a case has not been resolved after three hours of free mediation, counsel is encouraged to retain the services of the volunteer mediator to resolve any remaining issues. The program, which commenced in February 2010, had incredible success in March.  Five out of seven assigned cases were completely settled, and a sixth is still engaged in peaceful mediation with a volunteer mediator.

If you’re going through a divorce in Los Angeles County and you’re afraid you’re headed to trial, ask your attorney about having your case assigned to the VSC program.  You’ll be glad you did.

Gale and Jack

If you’re contemplating divorce and you answer most of these questions affirmatively, you need to take a good hard look at yourself.  It may be time to admit that you’re partner isn’t the problem, and divorce won’t solve anything.  It will only add to your problems and if you have kids, the divorce could do them irreparable harm.  Find a good therapist, start couples counseling, and refocus your energy on what you can do to save your marriage.

Suppose, on the other hand, that the answers to those questions are not so positive.  Gale was the mother of an infant child.  She and Jack had been married less than two years.  In those two years he had gotten heavily into drugs, and for the last year he had been dealing.  When Jack got high, he got physically abusive to Gale.  When I met her, she still carried the traces of her most recent black eye.

“I’m really involved in my faith and my church,” she explained to me.  “So, I’m not eager to be divorced.  But my pastor told me I should come and talk to you.  What can I do?”

The law can help a person like Gale get some leverage with her husband.  A judge could, on proper request, make an order that would give her immediate, temporary relief by imposing emergency restraints on Jack.  Jack would have to appear in court to explain his conduct.  He would have to comply with the temporary restraining orders and he could be ordered to begin paying Gale support money.  Those restraining orders would tell him he was not allowed to live in or even come to the front door of her apartment.  They would tell him he couldn’t harass Gale in any way, in person, by phone or by email.

I sat and explained all of that to Gale.  Then I continued, “If he disobeys any of those temporary restraining orders, he faces the possibility of arrest and imprisonment for contempt of court.  And he’ll also have to show cause why he shouldn’t have to pay for my services to you and for the court’s costs.”

“No kidding?”
“Not one bit.  Women across the country are faced with the same predicament you’re in. And, if they’ve got the courage to stand up to their husbands, the courts are ready to stand with them.”

I had known, almost from the moment she walked into my office, that Gale was not a woman who was used to being a victim.  She had not come to me looking for safety and she didn’t have any sentimental notions that Jack was going to change because of his love for her.  Instead, her agenda was entirely straightforward: She wanted to stop getting beat up and she wanted to help her husband make a change if that were possible.

Gale signed the requisite documents then and there.  I took them to the court the next morning and they were served on Jack that afternoon at his job.  Gale had his bags packed and waiting for him that evening.  A sheriff’s deputy stood by while Jack picked them up.  Then he was gone.

Read the rest of the story here…

The Seven Options for Divorce: Number Six

Your sixth option is Rent-A-Judge.  If California were a business, it would be bankrupt.  The courts are under-funded and over-crowded.  The lines waiting for trial dates go on and on.  The supervising judge in the family law department is anxious to get rid of cases.  Any time two attorneys stipulate to file an application for Rent-A-Judge, the court will immediately appoint a retired judge in good standing as a judge pro tem*.

But how does it work?  The court appoints a retired Superior Court judge, an appellate court justice, or a Supreme Court justice, and you rent their time.  In most instances they apply the same rules they would if they were sitting in a courtroom.  They may even work in a courtroom.  But if Angelina and Brad Pitt decided to get married and then decided to divorce, they wouldn’t go to court.  They’d hire a retired judge and they’d have their divorce at Chateau Marmont and it would be catered.**

Los Angeles County is host to a “Rent-A-Judge” program wherein retired Superior Court judges are available as arbitrators or will sit as judges on a private basis.  In the “Rent-A-Judge” program you try your case in a conference room just as you would in a court room, but without the delays and interruptions you experience with a judicial officer who is subject to the interruptions of a heavy caseload.  If you know you have a case that will be in court for a long time, this option can save you a lot of money.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation

* temporary judge

** The Law Collaborative does not represent either of the Jolie Pitt’s and is in no way making any claims about the state of their relationship.  It was a harmless, fictional example.

The Seven Options for Divorce: Number Four

The fourth option for divorce is Arbitration, which is quite different from our first three options.  The Kitchen Table Divorce is casual, creative, quick and inexpensive.  Mediation is a cooperative effort between individuals to reach a mutual agreement based on consensus and compromise.  Collaborative Divorce provides you with a team of professionals that rally and support you, ensuring that all your needs are met.  Though Arbitration is similar to mediation, it is more like litigation in that the parties present their respective positions, evidence, testimony and witnesses to a trial of fact.

Arbitration is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides.  The arbitrator may be a retired judge, an experienced trial lawyer, or some other professional selected from a panel of competent arbitrators, such as the American Arbitration Association.  Arbitration can be either voluntary or mandatory and can be either binding or non-binding.  The principal distinction between mediation and arbitration is that whereas a mediator will try to help the parties find a middle ground on which to compromise, the (non-binding) arbitrator remains totally removed from the settlement process and will only give a determination of liability.

Arbitration is most commonly used for the resolution of commercial disputes, but it is desirable in divorce cases when agreement cannot be reached but the parties still wish to save the costs and expenses of litigating through the usual judicial system, which has built-in delays and attendant increased costs.  The Los Angeles County Superior Court sponsors an arbitration program and a “Rent-A-Judge program wherein retired Superior Court judges are available as arbitrators, or will sit as judges on a private basis.  But we’ll talk more about Rent-A-Judge in a later post.

Option 1:  The Kitchen Table
Option 2:  Mediation
Option 3:  Collaborative Divorce
Option 4:  Arbitration
Option 5:  Negotiation in the Shadow of Litigation
Option 6:  Rent-A-Judge
Option 7: Litigation

What’s new at The Law Collaborative

Dear Friends of the Law Collaborative,

This April we celebrate an anniversary. Although Ron and Robert have been practicing family law for a sum total of fifty years or more, this April we celebrate the First Anniversary of The Law Collaborative, LLP, formed by Ron and Robert with the stated aim of ‘Bringing Peace to the Legal Process.’

With this in mind, we offer our readers one simple suggestion for establishing peace in our daily lives.

Thankfulness.

Even in tough times, there is plenty for which to be thankful. If we establish a habit of noting the small things that mark us as fortunate, we cultivate Thankfulness and Appreciation. Establishing these qualities in our lives benefits our health, our relationships, and our general well-being. They also have a way of overflowing into the lives of others. Realize that there is no actual risk attached to exercising Thankfulness and Appreciation, and that such attitudes come with much potential benefit. Thankfulness and Appreciation may be experienced on a daily basis if we apply ourselves to forming the habit.

COLLABORATIVE LAW – The attorney who wishes to employ collaborative law in his practice must have a thorough knowledge of negotiation skills, and understand the underlying theories and strategies of negotiation. Minimum standards for collaborative family law practice are continually expanding, as the work continues to attract more followers throughout the country. The State Bar provides education on an annual basis, making available new tools, technology, and information generated by the professionals engaged in the practice. This month, on Saturday, April 10th, Ron will be the closing speaker at the “Helping Families” conference at Pepperdine Law School in beautiful Malibu. Any professional interested in learning more about collaborative practice would do well to attend. For more information, check www.CDR4-10-10event.com

We would like to share a testimonial, and our new blog –

www.RonandRobertonDivorce.com

Testimonial:

The Law Collaborative is a team of divorce lawyers and paralegals who advocate for the family. I have yet to come across another group of lawyers who take as much care in preserving family values, keeping costs down and protecting children, as the good people at The Law Collaborative. TLC focuses on keeping families together, even in the middle of a crisis. This concept has so enraptured me that I’ve been inspired to write “A Serious Girl,” a blog that focuses on marriage and family. The Law Collaborative opened my eyes to the many options we have for our marriages, our children, and our lives.

Visit Ron and Robert on Divorce on ITunes for additional information. Please call us if you have any questions. We are here to serve you.

Follow us on www.Twitter.com/TLC_Law
Add us on www.Facebook.com/TheLawCollaborative

Best,
Ron Supancic and Robert Borsky