Thursday, March 5, 2020

What Makes Mediation Different From Litigation?


What is Mediation and How it Can Help You Reach an Out of Court Settlement

        Statistics consistently show that the majority of cases conclude with settlement so why do people think they have to go the litigation route when divorcing?  Surprisingly, because most people do not realize that there are other options.  In fact, almost all of the people who call my office say they hope to reach a settlement and do not want to go to court.  But their question is “how can they accomplish this”? The answer is mediation and here’s why:

BASICS OF DIVORCE

        In California, in order to get a divorce, a case must be filed in the Superior Court.  To finish a divorce, the issues in the divorce are either agreed upon by the spouses and submitted to the court in a written agreement for the judge to sign or there is a trial where a judge makes all of the decisions.   Neither party gets to make decisions on their own.  Most people do not want to go to trial and there are good reasons for this sentiment!  It is a long and complicated process, it is expensive to hire an attorney, and it very often yields unexpected and disappointing results.  The adversarial nature of the litigation process almost always increases hostility and negative emotions between the parties, even if they didn’t have animosity prior to litigation.

HOW DOES MEDIATION WORK? 

        Wanting to reach an agreement and actually being able to take the steps necessary to achieve an agreement can feel insurmountable.  It can be very difficult for spouses who are getting divorced to work together and have productive conversations.  Communication between people getting a divorce is commonly strained and often impossible.  Understandably, it can be very hard for spouses to talk about things that are uncomfortable, difficult, or challenging. Mediation is a method for reaching agreements that really helps people in this situation. In mediation, the parties’ discussions take place with a mediator. The mediator is not a decision-maker nor a legal advisor. The mediator is a facilitator, somebody who guides the conversation while helping the participants isolate what the issues are and determine their own goals and objectives. The mediator assists in the negotiations so participants can reach their own agreements, make their own decisions, and decide the future of them individually as well as their children. Mediation is a process that emphasizes the spouses’ own responsibilities for making decisions that affect their own lives. A mediator is also a guide through the complicated legal process, including all the forms required, from the initial court filings to the finalizing of an agreement which will ultimately be submitted to the court.

WHY IS MEDIATION ANY DIFFERENT THAN US JUST TALKING BETWEEN OURSELVES?

Working with a mediator enables the conversation to be more productive than when people attempt settlement discussions on their own. Just the presence of the mediator in the room enables the parties to approach their issues and the discussion differently. Sometimes the facilitation by the mediator results in the parties having a better understanding of what the other is saying. Sometimes it is just having a more structured framework in which to have discussions. Sometimes it is just about having the mediator as a guide to help them understand how the process works and help them take their agreements in principle and turn them into a formal agreement that can be submitted to the court.
Mediation does not make the issues in a divorce different but it can make the process less adversarial, less combative, and more streamlined. Mediation sessions are scheduled based on your schedules, not determined by hearings set by a court. Parties are able to focus on objectives and goals, not positions and arguments. Mediation, in general, takes significantly less time than litigation and therefore costs significantly less.

        Laurie Amaya provides a free consultation for parties who are interested in mediation.  For additional information go to Ltafamilylaw.com. Contact Laurie at Ltafamlaw@earthlink.net or call her at 626-441-2473 to schedule an appointment.

Tuesday, January 7, 2020

What does the phrase “This is not a final order under Montenegro v. Diaz” mean and should we or shouldn’t we include it in our mediated settlement?

Some preliminary background

         In order to understand this case reference, we need to start with a little background in custody law.   Everything that a court does is based on legal definitions or provisions that are set out either in legislative law or case law.  When a judge considers a custody dispute at a hearing in court, they use a standard of analysis called “best interests of the child.”   This means the judge’s decision has to be based on the “best interests of the child.”  Montenegro v. Diaz is a case which was decided by the California Supreme Court which established law regarding child custody determinations.  Pursuant to the Montenegro case, as well as related custody law, “When determining the best interest of the child, relevant factors include the health, safety and welfare of the child, any history of abuse by one parent against the child or the other parent, and the nature and amount of contact with the parents.”  (Montengro v. Diaz, (2001) 26 Cal.4th 249.)

What makes an order final?

         A custody order is considered final either when a custody order is made at trial or a post-judgment custody hearing or if the parties reach a stipulated judgment and agree that their custody agreement will be a final order by including language in their agreement that is a clear, affirmative indication the parties intended such a result.

What happens if one party wants to change custody?

         Sometimes a parent will want to change the custody orders.  If the parents are unable to reach an out of court agreement regarding a potential change and the parties have to go to court for a court to hear the disagreement, how the court considers the request depends on whether the existing order is final.   According to the Montenegro case, if the existing custody order is final, the policy of the law prevents a court from making a custody change unless there have been significant changes of circumstances.  These words “change of circumstances” are key words because the court requires that the parent who wants the changed custody plan show that the circumstances that exist now are substantially changed from the time when the initial order was made.  If not, the court will not consider the request.

Does Montenegro apply if we just want to change the schedule?


         Montenegro only applies to custody determinations.  Custody refers to whether parents will have joint custody or if one parent will have sole custody and applies to either legal or physical custody.  The schedule that describes which days and times the children are with each parent is about parenting time and not about custody.    If the issues are only about parenting time, the rules of Montenegro relating to final judicial custody determinations and the application of the test of change of circumstances does not apply.

How do we decide how to address this Montenegro language?

         The issues about how to address future custody issues need to be determined between the parents.  If either parent wants to have the language that the custody order is a final order, this is an issue that should be raised during your mediation.  Questions that you have about final custody language should be discussed with your consulting attorney.