MEDIATION, COLLABORATIVE DIVORCE & PRIVATE  JUDGING 

 Many clients view the legal system as not consumer friendly, impersonal, intimidating, unsympathetic, unresponsive, overwhelming, too costly, too long, too inefficient and too adversarial.   Further,  since 2009, the Los Angeles County Superior Court has closed 79 courtrooms and has reduced its staff by 25% due to its budgetary crisis caused by the economic downturn. As parties are becoming more frustrated with overcrowded courtrooms and the inevitable, frustrating delays, they may be interested in exploring other ways to resolve their cases. This article will discuss alternate means of resolving family law cases. The three areas discussed below are: Mediation, Collaborative Divorce, and Private  Judging.

 MEDIATION:  

MANDATORY CHILD CUSTODY AND VISITATION MEDIATION: This type of mediation is available through the courts and is free to the parties. For all Request for Orders (“RFO”) filed  in California, which include custody and visitation issues, an appointment for this mediation will be calendared before the hearing date.  This is mandatory mediation and both parties must attend. Prior to the mediation both parties must also complete a mandatory parenting orientation, which is available online.  If the parties are able to reach an agreement on the custody and visitation issues, the mediator can write up your agreement, the parties sign it, and, with your counsels’ approval of the agreement, a judge will sign that agreement, making that agreement the court’s order for custody and visitation. In that event, there will be no further hearing on those issues. A very high percentage of cases have successful mediation of these issues prior to a hearing, thereby helping to reduce the conflict, tension, trauma and expense of a formal court hearing on those issues.   If you are not able to reach an agreement on a custody and visitation plan at mediation, or one party fails to attend the mediation, then an entry is made to your court file and the hearing on those issues will proceed. 

 VOLUNTARY PRIVATE MEDIATION: Another type of mediation is private mediation by a privately retained mediator selected by your attorneys. Mediators are usually retired judges or very experienced family law attorneys. Mediation is a process in which an impartial third party facilitates communication and negotiation, and promotes voluntary decision making by parties to the dispute.  Mediation serves various purposes, including providing opportunities for parties to define and clarify issues, understand different perspectives, identify interests, explore and assess possible solutions, and reach mutually satisfactory agreements .

 One benefit of a mediator is, if one or both parties have unreasonable expectations, mediation is a reality check.  Mediation can also help generate ideas for mutually acceptable approaches towards settling a case by exploring the true wants and needs of each party.  This type of mediation is a privately funded approach to settling your case, and arrangements for payment for the mediator’s services must be addressed before the mediator is hired. The usual way a mediator is paid is half by each party. 

Another advantage of mediation is that mediation can be scheduled at the convenience of the parties. The parties may choose to have the mediation early in the case to try to settle before substantial fees have been incurred.  Another advantage is that the parties can choose the place of the mediation, such as one of their attorneys’ offices, which may feel far more comfortable to the parties than a courtroom.  

A disadvantage of mediation is that the mediator has no authority to make orders. If one party takes unreasonable, hard stances on the issues, you will spend a very frustrating day and accomplish nothing other than learning how entrenched and unmovable the other side is and how likely it is that you will be facing a full trial on all issues. That is, of course, also useful knowledge; however, it completely frustrates the purpose of mediation, which is to try to settle the case.  Mediation takes two parties who know how expensive it is to litigate a case and are committed to reasonably resolving their  case to  their mutual satisfaction.

 

COLLABORATIVE DIVORCE:

 Collaborative divorce is a process for resolving divorce and other similar family issues by good faith negotiation on a cooperative, voluntary basis without litigation.   It is somewhat related to mediation, but is not the same, and, in fact, there are major differences.  The main features of collaborative law are:

  • It is an entirely voluntary process to which both parties must agree and commit.
  • Both parties are represented by attorneys, but there is no mediator or third party neutral or judge
  • The parties must enter into a formal collaborative law agreement in which they agreed not to initiate court proceedings while the collaborative process is ongoing.  Threats of litigation or of any kind are not permitted.
  • Each party has a team which consists of their attorney and a divorce coach, who is a mental health professional.
  • The full collaborative law team consists of both parties, their attorneys and their divorce coaches.
  • Financial issues of the case may require that the full team be supplemented by a forensic accountant to value business interests, or appraiser for real or personal property.  These experts are jointly retained and are neutrals to advise the full team.
  • If necessary, the full team may also retain additional experts, such as a child specialist to assist with custody and visitation issues.
  • A very important aspect of collaborative law is that the parties’ attorneys do not negotiation on the side with just each other. ALL negotiations take place with the FULL TEAM and the neutral experts.  No concealment or withholding of information and all information and documentation regarding the parties assets and debts is open to all participants.
  • Unilateral hiring of an outside expert by a party is forbidden.
  • This process requires good faith bargaining on the part of both parties.
  • The information and any written materials generated by this process CANNOT be used in later litigation should the collaborative process fail to settle the case.
  • If the collaborative process fails to settle the case, both attorneys must withdraw and a party CANNOT use an attorney who involved in their collaborative process in later litigation.


As you can see from the above, the collaborative process requires the deep commitment of both parties to settle the case. The process will fail and the parties will have to start all over again from the beginning with new attorneys to litigation the case if, at any point, the process fails.   As such, the parties need to consider whether they and their spouse have the character and personalities suitable to the deep commitment the collaborative process requires.  Parties with any history of the following should seriously consider not doing collaborative divorce: 

  • Alcohol or drug abuse
  • History of domestic violence
  • Dishonesty or unscrupulous
  • Need to dominate or control
  • Mental illness, such as depression, bipolar, etc.
  • History of failing to fulfill commitments
  • History of an inability to make decisions and take responsibility


Candidates for collaborative divorce must be straightforward, honest, reasonable people who respect each other and respect each other’s rights.  That may be asking a lot of people who are already unhappy enough with each other that they have decided to divorce. Further, there may be emotional barriers to settlement, such as distrust, anger, betrayal, imbalance of power, or an  “I’m married to my divorce” attitude. If at any point any of these so interfere with the collaborative process, it will fail and the parties will have to start all over again with new counsel to litigate their matter. All the time, money and effort invested in the collaborative process will then have been wasted.  

 

PRIVATE JUDGING

Experienced family law attorneys know which retired judges are well-experienced,  competent, and available to hear family law matters as private judges. Not all judges on the bench know family law. Some judges know criminal law, business law, or other types of litigation.  Family law has its own Family Code and special rules in the Rules of Court and local rules, as well as a very extensive body of case law.  Private judging gives you the opportunity to select a judge known to be knowledgeable in family law.


A private judge is not the same as a mediator.  A mediator has no power to make rulings or orders for your case. A mediator is a neutral third party hired by both parties to help them settle their case, and that settlement may or may not be successful.   A private judge does have the authority to make orders and rulings the same as a judge sitting on the bench at the courthouse. So, unlike a mediator, if there is a disagreement that cannot be resolved, the judge can rule and resolve that issue.   The reason a private judge can make such rulings is because a private judge  must be approved by a special court order appointing your private judge to be the judge of your case.  However, there are are some orders a private judge cannot make, such as he cannot seal a file, or declare a statute unconstitutional, or hold any party in contempt. But, he can make discovery rulings and all other rulings necessary for your trial. Any orders he makes will thereafter be filed with the court as part of your case file. 

Parties may wonder why anyone would pay for a private judge when the public court  judges are free. For instance, if you have a matter that you consider urgent and want heard immediately, you may be dismayed to learn that it will be several weeks or months, or in the case of a long cause trial, a year or more for your case to be heard.  If you hire a private judge, however, you can schedule your matter with the judge of your and the other party’s choice at times and dates that are convenient to you, and usually far sooner.  For instance, if you are a business person, you may have a busy season during which it would be very inconvenient for you to be absent from your business for days to attend a trial. You may be a teacher who would prefer the trial to be during the summer months.  Being able to schedule your hearings at your and the other party's convenience can be very advantageous. 

Court calendars are very congested.  The court calendars your matter when a date and time is available to the court. That date may interfere with your business or personal plans, such as vacations, attending weddings, etc.  With a private judge, you schedule the time, date and place of the hearing/trial in advance and those times are reserved to hear only your matter and far sooner than the court could calendar your matter. 

The cost of the private judge may be offset by the savings you realize by not paying your attorney and forensic accountant to sit in the courthouse hallways while awaiting your matter to be called for hearing, or by the business you could have been transacting instead of sitting in the courthouse halls yourself. Depending on the retired judge you select, scheduling your matter would be far faster than waiting for the court to place you on their calendar. And, once your trial date arrives, with the court you run the risk of showing up for your trial with your attorney and experts only to learn that the matter that proceeded yours is not finished and you will either have to wait until they finish or your matter be continued to another date. Additionally, with family law courts, cases involving custody of children and domestic violence matters have priority over all other matters and may bump you off a trial date for which you have been waiting for months. That is unfortunate, but that is just the way it is. The family law courts must hear cases that have been given priority under the law. 

 A private judge can be hired for all matters on your case, such as hearing all pre-trial motions, the trial, and all post-trial motions, or can also be hired to sit as referee at depositions to make rulings during the depositions as to all evidentiary objections. Or, you can hire a private judge to hear one and only one issue, such as the validity of  a prenuptial agreement, or the date of separation. Sometimes having a ruling on such questions is all that is needed to allow the rest of the case to settle. It helps to move cases toward settlement faster to have such issues expeditiously resolved, instead of waiting for months on the court’s calendar.

 

           LAW OFFICES 
KATHRYN IRENE PHILLIPS

5429 Cahuenga Boulevard

N. Hollywood, California 91601-2918

Tele: (818) 404-1170

Fax:  (818) 508-1529

​Phillips@PhillipsFamilyLawyer.com