Divorce Articles

ADR Methods in California Family Law Article

1. INTRODUCTION

Several Alternate Dispute Resolution methods are currently being used in California Family Law cases.  This article will focus on Arbitration, Mediation, and Collaborative Law.

There are several reasons why clients might prefer alternative modes to resolve their family law cases.  Alternative modes can save clients time, money, and anxiety.  In addition, some of the methods equip the clients with dispute resolution skills which can remain with the clients after their divorce cases are complete.

With the current budget crunch in California, many courts (including those in Los Angeles and Orange Counties) have cut back hours and services.  Court employees were notified earlier this year that they could voluntarily take furlough days – unpaid days off.  This year, courts statewide have closed on the third Wednesday of each month.  Orange County courts now close at 3:00 pm each Friday.  This can only serve to increase the time a divorce case takes to come to resolution, and may correspondingly increase the costs to clients, both monetarily and psychologically. 

2. ARBITRATION

In arbitration, both parties present their cases to a private, neutral arbitrator, who renders a decision much like a judge.¹  The parties can present their cases themselves, or through attorneys.  The arbitration, by the parties agreement, can be binding, or non-binding.

Pursuant to Family Code §2554, “in any case in which the parties do not agree in writing to a voluntary division of the community estate of the parties, the character, the value, and the division of the community estate may be submitted by the court to arbitration for resolution…if the total value of the community and quasi-community property in controversy in the opinion of the court does not exceed fifty thousand dollars ($50,000).”

Under the Family Code, then, in cases where the community estate is not great, the court can order the parties to a private arbitrator for resolution.  At least one Orange County Commissioner has expressed interest in this procedure in order to expedite resolution of the many self-represented cases coming before the court.  The effect of the economy on parties’ estates in California may also serve to increase the number of potential clients eligible to be referred to arbitration under this section. 

Family Law litigants may also take advantage of California’s general arbitration provisions, found at California Code of Civil Procedure §§1280 et seq.  Under these provisions, parties voluntarily, contractually agree to resolve their disputes by submitting their issues to a neutral arbitrator.  The parties can agree that this procedure will be binding. The parties are entitled to be represented by attorneys in an arbitration, unless they waive this right (see C.C.P. §1282.4).  The conduct of the arbitration can be conducted under rules set by private arbitration services, such as JAMS, Judicate West, or other services.  In the absence of such agreed rules, the Code of Civil Procedure provides rules at C.C.P. §1282.2. 

Arbitration can be advantageous to clients if it means their cases are heard on an expedited basis.  While there are certainly fees involved in bringing a case to a private arbitrator, these fees can be more than offset by the earlier resolution of the case.

3. MEDIATION

Mediation is a process in which both parties bring their divorce issues to a neutral mediator.  The mediator represents neither of the parties.  The mediator’s skills are utilized to help the parties resolve some or all of their divorces issues. 

Divorce mediators do not need to be attorneys.  Many are family law attorneys, some of whom do only mediation.  Other are psychological professionals, or professional mediators.  Some divorce attorneys and psychological professionals team up to do “team mediation.” 

In mediation, the parties jointly hire the mediator.  If one party contacts the attorney-mediator first and provides attorney-client information, a conflict can arise with respect to the other party.  If the other party agrees to waive the conflict, then the mediation can go forth with the attorney-mediator.  If not, and the parties agree to attempt to resolve their issues in mediation, then they need to find another mediator.  

When the parties agree on a mediator, they enter into a retainer agreement with the mediator.  Most mediators charge the parties an hourly rate.  The cost of the case depends on how quickly the parties come to an agreement on their case issues, which can include custody, support, and property division issues.  It is impossible for the mediator to predict how long a case may take – that is up to the parties.

Mediation (similar to Collaborative Law, below) is a “client-driven process.”  This means that the case will proceed, and come to an end, on the clients’ timetable.  Some clients may want to meet daily, others weekly, or less frequently.  This will often depend on the number and complexity of the clients’ issues, their goals (which can differ between the clients), and their budget.

Mediation is not ideal for every divorcing couple.  Where one of the parties knows significantly more information about the parties’ assets, or has greater sophistication about financial issues, that party may be able to take advantage of the other party.  Where the parties’ marital relationship has been one in which one party bullies the other, that process can replicate itself within the mediation.  Some parties need an attorney to protect their rights.

Many mediators advise their clients to consult with family law attorneys on the side to consult with regarding the positions to take in mediation.  This can help with the issues identified in the previous paragraph.  There is no reason why these attorneys cannot participate in person in the mediation if the parties agree.  Obviously, costs concerns are one reason why this does not happen frequently. 

While a mediator cannot represent either party, they can (and many do), help the clients prepare and file court forms.  They often also draft the judgment reflecting the parties’ eventual agreement.

4. COLLABORATIVE LAW

Collaborative Law is a divorce method in which the parties agree to work together to negotiate a settlement which is the best result for the family as a whole.  The parties agree to stay out of court (other than for filing basic, necessary court documents), and to work out the terms of their divorce settlement through a collaborative, cooperative process. While the parties and two attorneys can agree to collaborate, Collaborative Law often utilizes a team approach, in which the entire team agrees to work to achieve that best result for the family.

A collaborative team consists of the two parties, two attorneys, and certain other professionals trained in the collaborative approach to family law disputes.  Typically, the other professionals are a “coach” for each of the parties (or one coach shared by the parties), and a neutral financial professional, such as an accountant or financial planner.  Where children are involved, there is frequently a neutral child specialist.  The child specialist’s job is to be the “voice of the child” in the collaborative process, and to ensure that the parties’ agreement is also in the child(ren)’s best interest(s).

The “coaches” are mental health professionals, frequently either psychologists or marriage and family therapists.  Their function in the collaborative process is to help each of the parties through the emotional difficulties that a dissolution inevitably brings up.  Equally important, the coaches assist the parties in communicating with the other side.  In most marriages, the parties establish patterns of communication with their spouses.  They can convey the same information through words which either encourage the reception of the communication by the other party in a positive light, or which “yank the other party’s chain.”  One of the coach’s primary functions is to break a negative communication routine, and encourage the transmission of information in a way which will be positively received by the other party. 

The duty of the financial professional is to gather all of the parties’ financial information including their assets, income, business interests, both community and separate, such that a financial settlement, which is in the best interest of the family, can be devised.  The financial professional works with the parties, and will often present alternative financial solutions for the parties’ consideration.

There are several reasons to do a divorce using Collaborative Law.  Depending on the clients’ goals and their participation in the process, it can be shorter, less costly, more private, more humane, better for children, and provide the parties with skills which will benefit them in the years to come.

Like mediation (discussed above), Collaborative Law is a “client-driven process.”  The parties’ case is resolved when the clients come to an agreement on their issues.  Because the process is based on them working together cooperatively, rather than pitting them against each other, this can frequently be quicker than a traditional, litigated divorce. 

Statistics compiled by Crescent Research, Inc. for the International Academy of Collaborative Professionals (“IACP”) shows that 51% of collaborative cases are completed within four face-to-face meetings of both clients and one or more professionals.  Twenty-nine percent (29%) require seven or more such meetings.

Collaborative cases can be better for children for several reasons.  Where a child specialist is involved, there is a trained professional who can meet with the children and be their “voice” in the collaboration.  There is no fear of the children being dragged into court (which is discouraged by most family law courts even in litigation) and being asked to choose between the parents.  The parents are committed, at least in theory, to try to come up with solutions that are in the family’s best interests, as opposed to litigation when an attorney must zealously advocate his or her client’s interests. 

Collaborative Law also provides the parties with beneficial skills which should outlast the divorce process.  In order to achieve a collaborative settlement, the parties must work together to achieve a mutually satisfying result.  This very act of “pulling on the same end of the rope” (as opposed to the litigation tug-of-war) can show the parties a new and beneficial way of dealing with each other.  Ideally, this skill will enable them to solve future issues with regard to their children and enable them to stand being in the same room together such that they can both attend and participate in inevitable family and friend events.

5. CONCLUSION

There are, then, at least three alternate dispute resolution methods currently in use for family law cases.  Each has its own unique characteristics, and advantages.  Clients considering divorce would be well-served to consider the merits of each, and assess them with respect to their own case issues and goals.

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