After ADR Fails in Family Law… What Happens Next?
COLLABORATIVE PRACTICE AND MEDIATION
Recently, there has been a focus on utilizing different Alternative Dispute Resolution (ADR) practices to (in theory) help clients avoid costly and emotional litigation. Some questions that arise are 1) What types of ADR are available in family law?; 2) What happens when the ADR process is not successful?; and 3) How is future litigation impacted by the strict confidentiality requirements and other limitations that go along with ADR?
ADR IN FAMILY LAW
Most people are familiar with the concept of mediation where an impartial third party (the mediator) assists the negotiations of both parties and helps to settle the case. The mediator cannot give legal advice or be an advocate for either side. If parties have retained attorneys (which is usually a requirement in Family Law mediations) those attorneys may or may not be present at the mediation sessions. If the attorneys are not present, they typically consult with their clients between mediation sessions. When there is an agreement, the mediator will prepare a draft of the settlement terms for review and editing by the parties and their lawyers. If mediation doesn’t result in a settlement, the parties are free to use their counsel in litigation.
Another option that many non-Family Law attorneys may not be familiar with is a Collaborative Practice. Collaborative Practice allows both parties to have lawyers, who have training similar to mediators, who assemble a team of professionals to assist the parties in working through the various issues of their divorce. This process requires signing a Collaborative Law stipulation that specifically states that the Collaborative attorneys and other professional team members (child psychologists, forensic accountants, communication “coaches”, etc.) are disqualified from participating in any future litigation (including providing aid, information or assistance of any kind) if the Collaborative process ends without reaching an agreement. This Agreement is designed to encourage the parties to work together and to result in settlement that is drafted by the lawyers and incorporates the shared goals of the parties.
WHEN ADR IS NOT SUCCESSFUL
Both Collaborative Practice and mediation rely on voluntary, free exchange of information and commitment to resolutions respecting everyone’s shared goals. This sounds great. But, let’s be honest, if the parties had mutual trust, shared goals and could communicate effectively, they probably would not be getting a divorce.
In reality, not everyone is suited for Collaboration. They may go into the process with the best of intentions but then realize it is not the proper forum for them to resolve their issues—either because there is a lack of trust, an imbalance of power or lingering hostility over the breakdown of the marriage.
Every client and every attorney should go into to the divorce process with the goal of exchanging information and reaching a settlement that is acceptable for both sides. Why do we need all of these restrictions and penalties? In the Collaborative Law framework, a party is essentially penalized for engaging in ADR and not reaching an agreement. Shouldn’t a party always have the option of going to court without also being punished with the loss of their attorney and/or the information and support they receive from their team of experts? It is not uncommon to see a person who is unhappy with the certain issues in the proposed settlement but is not financially in a position to opt out of the Collaborative process since it will basically mean that they are starting over.
Then again, there are those who will use the threat of opting out of the process as leverage to get the other party to give in to his/her demands because they are afraid of the penalties associated with an unsuccessful Collaborative case. Not only can this be emotionally devastating— since they feel they are entering into an unfair agreement — this will also result in increased litigation in the future with subsequent modification proceedings to try and change these “agreements.” There is also a lot of anger and resentment from both parties who have invested a lot of time and money in the process only to be forced to do it all again.1
WHAT ABOUT CONFIDENTIALITY ISSUES?
Evidence Code Section 1119 provides for mediation confidentiality and states that no evidence of anything said or any admission made for the purpose of, in the course of or pursuant to a mediation or mediation consultation is admissible or subject to discovery.
Does Evidence Code Section 1119 apply to the Collaborative Law process as well? Evidence Code Section 1119 and our Local Rules are silent on this issue. Does the fact that there is not a mediator or “neutral third party” facilitating communication between the disputants to assist them in reaching an “acceptable agreement” (Evid. Code Section 1115) preclude them from qualifying for the mediation privilege? Many Collaborative Law stipulations address this issue by including provisions that specifically state that all settlement discussions or negotiations, whether oral or written, made in the Collaborative process are privileged and shall be inadmissible in any proceeding involving the parties. Some stipulations also specify that the work product of any attorney or professional team members is also deemed inadmissible. What does that mean if you opt out of the Collaborative process? After all of that time and money, what do you have? Hopefully, you have some signed interim agreements for child custody and/or child and spousal support.
Since the collaborative process focuses on achieving the goals of both parties, they often focus on getting a global settlement of all issues and do not enter into any temporary or interim orders that are filed with the court. Without any written orders, a party must start from beginning and file a Request for Orders to obtain some temporary orders. Documents that are signed under penalty of perjury and disclosure documents required Family Code Section 2106 (such as an Income and Expense Declaration, Schedule of Assets and Debts and Declaration of Disclosure) should be available to assist new counsel in preparing their case. Lappe v. Superior Court (2014) 232 Cal. App. 4th 774. Usually, just because a party opts out of the Collaborative process, it does not mean they are not open to reaching a settlement on all issues. Sometimes, it just takes getting the Court to rule on a few contested issues to get the parties back on track for settlement and a resolution of all issues. Having that option available to the party at any stage of the process could save them more time and money in the long run and result in an agreement that both parties are satisfied with.
Before your client agrees to enter into Collaborative Practice, it is important to carefully explain the pros and cons of the alternative approaches so they can make an informed decision on how to proceed. What may be appropriate for some clients will clearly not work for others.