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The Ten Commandments of Family Law Litigation

photo by @jbtaylor via PhotoRee

There are many ways to resolve a dispute. To save our Clients’ time, money, and stress, we first recommend Collaboration. However, it takes two to collaborate. If you find yourself in a situation where collaboration is not possible,  we recommend following The Ten Commandments of Family Law Litigation:

I. Always take your file with you everywhere.

II. In your journal, make an entry of every significant event, conversation, discussion, and action of your spouse at the time it occurs.

III. In your ledger, make an entry for every financial event in your case in order to assure a complete accurate and legible record. (Example: each time support is paid out or received.)

IV. Memorialize every agreement with every person who is interested/involved in your case; keep/send copies.

V. Meet and confirm strategy with your attorney in person; explore alternative dispute resolution; confirm everything in writing.

VI. Know your strategy; do not deviate without advice and counsel from your attorney.

VII. Participate in preparation of your case: draft, document, investigate, gather information and pre-interview witnesses.

VIII. Let your attorney know when he/she is on-track as well as off-track.

IX. Schedule regular Spit & Growl sessions: don’t let resentments accumulate with your attorney or staff.

X. Keep your account current: offer security.

Honest, Blunt & Brilliant: Child Development

Ron Supancic asked Attorney Leslie Ellen Shear what steps parents can take to insure that their children are not harmed by the divorce and she answered,”They can take a deep breath to begin with.”

In part two of this four-part series, Attorney Shear describes beautifully the emotional process a couple goes through while divorcing, what their children go through, and what parents can do to help their children get through it.

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Missed Part 1? Here it is:

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

Don’t miss another episode! Subscribe to Ron and Robert on Divorce on iTunes and tune in next week for Honest, Blunt & Brilliant: Custody Matters.

Learn more about Leslie Ellen Shear at CustodyMatters.com.

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 1 of 5)

By Ty Supancic, Esquire

One of the primary goals of The Law Collaborative, LLP, is to become masters and innovators of Consensual Dispute Resolution techniques and practices. In order to develop and promote Consensual Dispute Resolution so that it may become the mainstream, we must change our vocabulary as well as our approach.

We purposefully use the term Consensual Dispute Resolution (CDR) instead of the more prevalent Alternative Dispute Resolution (ADR) because the word “alternative” is a pejorative. It suggests that ADR methods are secondary or tertiary choices to “regular” or traditional dispute resolution. “Regular” suggests mainstream, preferred, and superior. But anybody who has ever been involved in “regular” dispute resolution (litigation) can attest to the fact that, while it may be mainstream, it is not superior. Oftentimes both parties are worse off after participating in the traditional dispute resolution process, and the only people enriched are the lawyers.

Competent and ethical attorneys should always consider CDR methods and approaches first. Litigation should always be considered the last resort as it is usually the most expensive and least predictable avenue. We believe that in the near future, litigation will be considered the alternative dispute resolution method.

One of the most promising developments in the field of CDR is Collaborative Law, a specialized form of con-joint mediation involving two attorneys. This article is not intended as a primer on Collaborative Law; many far more eloquent practitioners have already provided these. For a short list, go to the Articles section of our website.

Nor is this article intended to persuade you that Collaborative Law is the way of the future. Do not bother reading further unless you believe that Collaborative Law holds great promise. If you need convincing, I would refer you to the case studies on our website, or those on the websites of any of our colleagues. The proof of the pudding is in the eating as they say. Instead, this article is intended to discuss and reflect on what can be done to improve our collaborative skills and instincts.

Read more…

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.

Read more…

The Seven Options for Divorce: Number Seven

Alec Baldwin wrote a book last year called A Promise To Ourselves, decrying “the corrupt California divorce industry” (his words).  He describes a nightmare divorce that lasted eight years and cost over three million dollars, after a ten-year marriage to Kim Basinger.   That is the seventh option:  Litigation.

A few years ago there was a case all over the newspapers.  A short marriage; a two-year-old child.  Dad was voluntarily giving Mom $50,000 a month in child support, but the mother wasn’t satisfied.  Mother wanted $350,000 a month in child support for the two-year-old.  Why?  Because Dad could afford it.

The couple spent over a million dollars – each – on the Order to Show Cause Hearing.  At the end of the day, after hearing all of the evidence and testimony, after concord jets and race horses and all the other evidence put in for a two-year-old child, the judge raised the support from $50,000 a month to $60,000 a month.   A hundred thousand for a million.  That’s litigation, straight up, all the way.

The good news is that you have options.  You don’t have to spend your life’s savings on legal fees or spend years fighting in court.  It’s your money, it’s your family, it’s your choice.

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

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 5

The fifth option is the default position. We call it Negotiation in the Shadow of Litigation.

The first three methods of divorce allow the parties to control the process, control the cost and control the outcome.  It’s your money, it’s your property, they’re your children, it should be your choice.  But most people aren’t aware of the first three options, or they don’t even consider them.  Many lawyers don’t bother to tell people about the first three options, and very few people are interested in option four, so most of the time people end up going with number five on the list.

In the fifth option you’re working with traditional lawyers who file traditional papers, bang the case around for two or three years, file Orders to Show Cause, Ex Parte hearings, and after all your money is gone, they settle the case.  That’s what most people get.

Trust me, you have lots of other options.

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

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

How much does a divorce cost?

That’s a great question, and very often the first question a lawyer hears from a potential client.  Mr. Ron Supancic answers that question in this short, informative video.