Frequently Asked Questions

Q: Why is divorce so terribly expensive?

A: Because it’s worth it…? Not usually… More commonly the strong emotions of the participants, combined with the nature and values of the issues at stake, result in the inability (or refusal) of one or both participants to openly and honestly cooperate with each other in negotiating a mutually acceptable agreement. We make every effort to assist our clients in their efforts to control divorce expenses.

Q: What can I do to minimize my legal costs?

  1. Avoid Court -> Make every reasonable effort to promptly resolve your case (or as many issues as possible) out of court, including taking every opportunity to encourage your opponent to join you in this effort (see “How can I avoid court?” below);
  2.  Unbundle? -> Consider “unbundled” or “a la carte” attorney services, which are terms applied to designate limiting the scope of your attorney’s services to a series of narrowly focused engagements (e.g. consultation, review or creation of specific document(s), representation at a specific conference or hearing, etc.).;
  3.  Flat Fees? -> Consider “flat fee” attorney services. While flat fees are intended to approximate hourly fees, this approach removes the universal anxiety that clients experience as the clock ticks in a conventional hourly fee arrangement.

Q: Can I really avoid court? Should I?

A: For those fortunate parties who can cooperate with each other, the emotional and financial costs of the transition can be minimized by keeping their matter out of court.

Cooperating parties can also protect the confidentiality of their finances and their family’s privacy. Beyond the obvious expense of litigation, both financial confidentiality and personal privacy are often severely compromised during traditional court proceedings.

Each and every fact, document, allegation and opinion, as well as the Court’s comments and rulings, all become a permanent part of the public record during litigation. We make every effort to assist our clients in controlling divorce costs, including minimizing costs that cannot be measured in dollars.

Q: How can I avoid court?

A: Aside from obvious “do it yourself” efforts, the primary non-litigation alternatives available to cooperating parties include: 

  1. Private mediation
  2. Collaborative negotiation
  3. Private judging, or a combination of these approaches. 

Our experience with all approaches to family law matters (i.e. traditional and non-traditional) empowers all of our clients, both those blessed with the all-too-rare good fortune of being able to cooperate with the other party, as well as those whose situation is more conflicted.

Q: What is private mediation?

A: Private mediation (also known as “True” or “pure” mediation) is a voluntary, confidential, cooperative process engaged in by parties for the purpose of reaching a binding written agreement utilizing the assistance of a neutral party as a facilitator of the process.  Although most parties who participate in mediation sessions do so alone (i.e. unrepresented), subject to the parties’ agreement one or both parties may be accompanied, either by their attorney or a third party.  

Mediation is a form of Alternative Dispute Resolution (ADR), and is distinct from other forms of ADR (such as Collaborative Negotiation, Private Judging, and Arbitration) (see: “What is Alternative Dispute Resolution (ADR)?”; “What is Collaborative Negotiation?”; “What is Private Judging?”). 

[NOTE: California family courts employ a process which is labeled mediation in the context of child custody and visitation cases, in an effort to facilitate creation of a suitable parenting plan.  Mediation by court employed Family Court Services (FCS) mediators is not private/true/pure mediation (see “How is Family Court Services (FCS) mediation different than private mediation?”)] 

We have decades of experience with private mediation, both as mediator and as advocates assisting our clients in the private mediation process (e.g. via consultation, document review, and advice).

Q: How is Family Court Services (FCS) mediation different than private mediation?

A: The key differences between the court’s FCS mediation process and true mediation are:

  1. FCS mediation is mandatory for litigated cases involving parenting issues, whereas private mediation is always voluntary.
  2. Court FCS employed mediators have very heavy work schedules (they are buried in cases) and thus have a very limited amount of time to complete their assigned tasks.  Private mediators can schedule as much time and as many sessions as is necessary to assist the parties.
  3. Parties who participate in court ordered FCS mediation with court employed mediators are likely to have their right to confidentiality waived, either expressly (written or verbal) or impliedly.  
  4. In cases where confidentiality has been waived, court employed FCS mediators are tasked with making a recommendation to the court regarding any areas of a parenting plan in which the parties fail to reach a full agreement during the limited time available.  Thus, they must fulfill three roles: mediator (exploring possibilities for parties to agree); fact finder (including making determinations as to credibility, contacting third parties, etc.); and arbitrator (preparing and submitting to the court and the parties a formal written recommendation regarding all parenting issues where the parties have not agreed).
  5. The scope of the FCS mediation is specifically limited to parenting issues, while the scope of private mediation issues is as broad as the parties wish.

We have decades of experience assisting our clients preparing for their participation in the court ordered FCS mediation process.

Q: Isn’t use of the term mediation in the context of court ordered FCS mediation misleading?

A: Many professionals believe that any form of non-confidential mediation should not be labeled mediation because of the confusion created by the misapplication of the term.  It is unfortunate that the misuse of this term is employed by the court system, particularly so when the interests at stake are the welfare of children.  Short of legislative or administrative reform, the only solution to the present problem is education.

Q: What are the primary advantages of private mediation?

A: Private mediation offers parties many obvious advantages over litigation, including: privacy, flexibility, promptness, cost savings, control of the outcome, and less conflict and emotional upheaval.  In the divorce context, private mediation is a tool used by the parties to dissolve their marriage in a less adversarial way, and is far more efficient (assuming that the parties succeed in reaching a binding written agreement).  

Ideally, the mediation process begins with an initial joint meeting of the parties with the mediator. In the event that the mediator has met individually with one or both parties prior to the initial joint meeting, the mediator will only proceed with mediation after obtaining a waiver of any confidentiality as to matters previously discussed and full disclosure of the substance of all prior discussions. Once the process is explained and all questions are answered, if the mediator and the parties decide to go forward, they do so only after a written Mediation Agreement is executed by the parties and the mediator.  

The initial meeting is followed by as many sessions as the parties wish, scheduled at the mutual convenience of all.  During each session the mediator guides and assists the parties in addressing the necessary topics. During the intervals between sessions, parties complete agreed tasks in preparation for the upcoming sessions, as well as consult with any advisors of their choosing. A successful mediation concludes with the execution of a binding written agreement prepared by the mediator, and preferably reviewed by each party with their own attorney. Private mediation is not appropriate in some cases.  

Q: What are the primary disadvantages of private mediation?

A: Because private mediation is voluntary, parties assume the risk that all or some of their time and money invested in the process may prove to be wasted in the event no agreement is executed.  Also, in cases where parties lack adequate independent information and believe that they ought not trust the other party as to material representations, this is an obstacle. Mediation is no substitute for formal discovery. 

If you believe your case may be suitable for private mediation, you will need to discuss this option with the opposing party, either directly or via an intermediary.  Note that any session between you and a prospective private mediator, prior to a joint session with both parties and the mediator present, may very well raise suspicion in the other party that the mediator’s neutrality may have been compromised, sometimes effectively eliminating that prospective mediator from consideration, despite full disclosure by the mediator of the substance of all discussions.

Q: What is Alternative Dispute Resolution (ADR)?

A: As the name implies, in the context of family law and divorce, ADR is a label applied to those approaches to resolving matters without little or no involvement of the courts. ADR includes Private Mediation, Arbitration, Collaborative Negotiation, and Private Judging. (see: “What is Private Mediation?”; “What is Collaborative Negotiation?”; “What is Private Judging?”).

Generally, in family law and divorce contexts parties employ one or more ADR approaches in their efforts to minimize the financial and non-financial costs, delays, inconvenience, and loss of privacy inherent in court proceedings.

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