Recent Posts in Desert Familly Mediation Services Category
| March 14, 2011 |
| FAMILY LAW SANCTIONS and DUE PROCESS: Santa Barbara Trial Court Reversed in IRMO DURIS |
| Posted By Thurman Arnold, CFLS |
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Visitors to my websites know that I am biased in favor of mediation, believing that parties to litigation involving their family should opt to resolve their disputes themselves rather than undertake the perils of having a judge, or anyone else, decide their matters for them. This includes mediators (whose role is not to decide your issues for you but to facilitate you finding solutions). However, I admit that sometimes this doesn't seem possible. Too often one or both parties are reacting so deeply to their hurt or resentment and spinning with angry, busy minds that they perceive family court as the killing field for their unresolved conflict - a public forum for the spectacle of flogging the other side.
A recent reported decision illustrates the financial waste that occurs in high conflict family court battles, where there are no winners and only losers. My remarks are not intended to convince you to hire me, or to impugn judges whom I contend are struggling valiantly to protect children and mete out justice as best they can within a system that is not equipped to cope with the multi-dimensional challenges of emotional divorce and its aftermath: The trial judges are not broken, but the framework for government sponsored attempts to regulate the processes of divorce and domestic partnership dissolution is. Nor should it be read as an indictment of divorce lawyers or any particular barrister. An adversary model for resolving family disputes guarantees that the experience of everyone connected with these cases will be ... adversarial. Surprise!
In the meantime appellate justices are stepping forth to triage for the litigants, their attorneys, and the lower courts. But is it realistic to expect lawyers (in that small relative percentage of domestic cases where people can afford them) or judges to not be swept into the reactive thinking that the parties' disputes are personifying? I say "no". Our brains are hard-wired to respond to conflict in predictable ways. While we all ought to conduct our affairs in increasingly enlightened and ethical ways, and lawyers and judges surely benefit by incorporating the wisdom of the mental health sciences, a legal and cultural framework grounded in adversarial processes can never escape them. How could it be otherwise?
Marriage of Duris & Urbany
On March 14, 2011, the Second Appellate District (Division Six) reversed Santa Barbara trial judge Colleen K. Sterne's decision to discipline a self-represented litigant (an unemployed attorney) for, among other things, her earlier attorney's tactics in filing a motion to compel document production evidently without first attempting to resolve the disagreement informally. Discovery motions generate large fees and consume valuable judicial resources.
At the end of the hearing on Wife's original requests (the custody and support modification request she'd filed eight months earlier), the trial court imposed $10,000 in attorney fee sanctions against the Wife. Husband's attorney had evidently suggested that the Court do this somewhere in his Reply paperwork, and reiterated the request in his closing argument. The trial court took the bait. Its ruling was found to be an abuse of discretion.
According to the Husband, by the time of the hearing on original OSC to modify custody and support he had spent $25,000 for fees. Wife probably spent a similar but slightly lesser amount since she was in pro per for many months. Their fees and costs for the appeal probably were $20,000 more apiece (but Mr. Urbany handled his own appeal). Husband will get none of his money back, and Wife will recover only a portion of hers. Neither will achieve an emotionally satisfying resolution and their matter likely obsessed their lives over the year and a half. This case is "a pox on both your houses."
Wife's former attorney, Jacqueline Misho, was hired some six months into the proceedings, initiated when the Wife filed a motion for "100% physical and legal custody" of the parties' two children, plus more child support. Attorney Misho took an aggressive stance in advancing her client's claims and filed a discovery motion to compel production of documents. This was unsuccessful. The attorney was then let go. A week later the Wife's custody motion was heard. Although sanctions against her had not been requested by way of a noticed motion (possibly because there was little time in which to file one), Husband urged that she should pay his attorney fees. At hearing end when Judge Sterne announced her intent to hit Wife with $10,000 in sanctions as a share of the Husband's costs in part based upon the prior discovery motion filed by Misho, Wife complained "How am I being penalized for hiring [Misho]? How was I supposed to know? I thought she was the best there was." In my experience, "the best there [is]" often means the meanest and toughest. Many family law attorneys advertise themselves in such a fashion.
I have no personal knowledge about either party's attorney beyond what Google searches of their names retrieve and what a review of the California State Bar website discloses. Both are reputed to be tenacious divorce litigators. The problem with vociferous advocacy, irrespective whether it occurred in this case or not, is that it tends to generate a story of its own and so to increase the conflict noise volume - I confess I know this from my own past personal experiences. It can infect the process - there is something of a reciprocal feedback loop that occurs between high conflict litigants and their attorneys that is difficult to resist. Sometimes it seems to be the only choice, but usually that justification is borne of the tensions within the conflict itself and is not necessarily true.
Family law litigation becomes particularly nasty when attorneys for each side compete to inflame the trial judge with sound bite characterizations about the other. Some clients demand this from their counsel or become quite perturbed if their advocate doesn't respond in kind to these sorts of attacks. Lawyers who are being paid large sums are pressured to speak their client's minds (read: resentments) or risk a loss of confidence by their client. Of greater concern to the integrity of the legal professional generally, there are many family law attorneys whose entire strategy is geared around slandering the other litigant (or their attorney), often by exaggerating or misrepresenting the facts or history of the case solely as a means of confusing the judge or just plain pissing the court off in the hope of creating a favorable bias. Tit for tat then threatens to overwhelm the process. This sort of behavior can include ignoring the procedural rules for raising the issues to be decided, which is a form of ambush that can be effective exactly because the answering party is unable respond to an oncoming train if there is no forewarning.
I am not saying that this was either attorney's conduct in Duris as I lack sufficient details to make a full assessment; instead I am pointing out that adversary litigation programs lawyers and unrepresented parties to use whatever tactics that might work, and sometimes to try them all. This seems to be viewed as not only within the standard of care for zealous advocacy but to be required by that standard. I can comment that one irony of this case is that while the Wife's attorney allegedly failed to act in a cooperative manner in choosing to file a motion to compel without first attempting to solve the argument informally, Husband's attorney seized upon that misstep to buttress a request for sanctions that was never properly placed before the court. Sometimes these sound bites do stick; they did here, at least with Judge Sterne. Unfortunately, under these rules of engagement lawyers are thus encouraged to act as badly as the talking heads we see arguing on many 'news' programs, something that the American public views as a form of 'entertainment.'
This is one of the many dangers of adversarial litigation. Both sides feel righteously indignant, and attorneys tend to internalize their client's upset so that the boundaries between the client's experience and the attorney's own blurs. It is a recipe for disaster, but understandable given that emotional and angry ex-spouse pressure-cookers are letting out steam on both sides of the table all at once.
The appellate court's decision doesn't give us sufficient facts to discern whether the mother's initial application was well-merited, but Judge Sterne's decision suggests she did not view mom's motives (or her attorney's decision-making) to be in good faith. Wife's request for 100% custody looks to be retaliatory and frankly when this is true - and too often it is, even if not here (Judge Sterne referred to Wife's prior discovery motion as a "fee sink") - trial courts need to discourage such conduct in strong ways, especially when it generates unnecessary fees for the other party or damages children. Some people only respond to monetary slaps. I can merely speculate about these proceedings without reviewing the trial briefs and reporter's transcripts, and emphasize that reading 'between the lines' cannot give the whole picture.
Still this is a published decision of the 2nd Appellate District. Following on the heals of Marriage of Fong released for publication on March 3, 2011, these decisions, along with
Marriage of Tharp, should be read together to glean the larger message. Reviewing courts are holding everyone accountable - litigants, attorneys, and bench officers. Due process and fundamental fairness require every side to cross their own t's and dot their own i's. This is welcome instruction to the entire spectrum of family court members and participants.
Be Careful What You Ask For,
and Consider Asking for Something Different
However inappropriate Ms. Duris' conduct may have been (if at all), the appellate justices ruled that due process required that she be informed in advance that the court was considering sanctions in order to have an opportunity to muster and present evidence in opposition. Husband's request for relief should have been properly placed before the Court and not have been based upon offhand arguments buried somewhere in his reply pleadings or first presented in closing argument. This is a good thing. Last year's Elkins legislation spotlights the public policy goal of ensuring transparency for self-represented and represented family law contestants alike.
Now, eighteen months later the odyssey is not yet ended - the Sterne decision is sent back to the trial court (not likely to be Judge Sterne, who can be disqualified as the judge on the next go-round) "with instructions to conduct a new hearing with proper notice." In other words, to relitigate whether sanctions should be assessed against the Wife.
In the meantime, she is awarded her costs on appeal. No appellate case costs only $10,000, the amount in controversy that led to this appeal. Hence, Husband - who won a short-lived victory at the trial court level - will now likely end up footing not only the bill for his trial attorney, but the Wife's attorney fees on appeal as well (be careful what your attorney asks for!) The saga can be now rebooted. Might it end differently this go-around? I'd wager (and I hope) the parties have had enough and that will agree that Wife will forego her appellate costs while Husband will waive a second sanction's motion. But divorce trance is stubborn stuff.
There are only losers in Marriage of Duris. The children of these two warring parents seem utterly forgotten. The take away is that using California court judges to beat up the person you now find despicable (who then smacks back) may blow up in the face of each contestant; given that people often view justice from the lens of their own desires it is a small wonder that government regulated divorce hasn't found a way to respond to such expectations, and possibly never will until the entire system is jettisoned and recreated.
In the meantime try a different tact, if you wish it and if you can. Work together to resolve your disputes collaboratively or through mediation. Even if the other side seems incorrigible, you determine how you respond. Remember, litigation induces trance - seek equanimity and send your kids to college instead!
Here is a link to Marriage of Duris & Urbany.
Thurman W. Arnold, III, CFLS
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| February 26, 2011 |
| Alternatives to Family Court and the Challenge of Mediating Cases With Strong Emotions |
| Posted By Thurman Arnold |
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Some of you know that my hope for people with family law crises is that they mediate their disputes, rather than litigate them. This is why I am a co-founder of Desert Family Mediation Services (DFMS), serving the southern California inland and desert cites.
At DFMS we are sometimes reminded that people in relationship breakup who hope to employ mediation to resolve their disputes have a broad range of needs and expectations that involve emotional dynamics in widely differing degrees. Often this occurs when one or both parties expresses deep anger or hurt. It is not uncommon that these dynamics include feelings and judgments between the parties and others that are not immediately evident, but which spill into the mediation at some stage. There is no 'one size' that predicts every couple's circumstance or mediation experience, but it is to be expected that strong feelings about many things may be triggered during the process. If this occurs it can be useful in assisting the parties to facilitate their looking at these feelings, and the raw pain that often underlies them.
Otherwise, when for instance people become stuck in angry exchanges or refuse to consider that what is important to the other person may actually be relevant to both since no agreement can be reached without joint assent, the parties risk impasses that may imperil the mediation's success. We like to say that each party holds the key to unlocking the best resolution for both of them. Looking at emotional dynamics and the feeling and reactivity that they engender may be an essential component to the process, but this is quite different from suggesting that people's minds about what the hold to be true will necessary change or dissolve into a cloud of blissful forgiveness: We just find that positions loosen and dialogue is possible when we look at the judgments that relationship wounds accumulate.
Which is not to recognize that in every case it is necessary or even appropriate to review what the parties' feelings were or have become. Some people wishing to mediate have simply realized their marriage or domestic partnership is no longer working and can amicably admit it, and really just want nothing more than reliable help with the legal mechanics of dissolution. In those cases mediators tend to act more as scriveners - that is, the mediator's role is to formalize the party's agreement rather than to guide the parties by helping to resolve conflict. But even in these seemingly simple situations, there is no guarantee that powerful unforeseen or unacknowledged feelings will not come up in ways that cause a party or both parties pain and so make what seemed simple into something much more textured and complex.
It is often not uncommon that when ask the parties whether they feel it may be or become prudent to discuss emotional issues during mediation one participant, but not always both, report that emotional hurts are not seen as something that will likely arise in mediation. This seems to be true especially where one party has checked out of the relationship some time before the decision is made to break up or is openly expressed to the other person. Psychologists call this "decoupling," and decoupling usually results not only in wide differences in each person's experience of the emotional breakup since one party may have what amounts to a 'head-start'. There are those whose views of "fairness" and "equity" are extensively colored by how the relationship ended or personal hurts or violated expectations that were suffered or inflicted along the way. Such situations also frequently include incidents of 'affairs' or other secretive behaviors that can be devastating to the person who is making a late discovery. Not surprisingly this can result in much anger and resentment, something that fuels conflict and disputes and makes unwinding them more challenging.
All cases are underpinned by important feelings about any number of possible subjects, and each contains its own hooks where people can find themselves getting stuck in an instant. When anger gets linked with concepts of "legal rights," it may be near impossible to work through the parties' interests within mediation without addressing these emotions in some meaningful way. This is one reason why Family Court exists, and why it remains the forum of choice for most people for ending relationships no matter how destructive and expensive it can become. People locked in conflict fueled by anger just may not be able to stop the cycle of reactivity.
A mediator early on is rarely able to foresee whether emotional triggers may threaten to derail the process at any point or stage. This is why we raise this issue for your consideration. But agreeing that emotional dynamics, including underlying anger or judgments, should be discussed at all may not be something both parties will easily agree to. There can be considerable fear about this topic. Perhaps understandably, many people already feel they have suffered enough from their own emotions or from the other's. However, since mediating your case is always a voluntary process for each of you (and the mediator too) it can be imperative that both parties be or become willing early on in order to entertain such a dialogue. This is not something that can be forced or imposed upon either.
Moreover, emotional dynamics and what underlies them challenge mediators equally as much as the parties. Mediators are susceptible to making judgments or being pulled into a relationship dynamic, and this can perpetuate the conflict rather than serve to assist in overcoming it.
Partly because of this recognition, together with Retired Judge Gretchen Taylor, I spent a week in early February, 2011, training with a small group of professional mediators and collaborative attorneys, including several from Europe, under the supervision of Gary F. Friedman, Jack Himmelstein, and Norman Fischer in a program entitled "Self-Reflection in Action: Using Our Inner Selves to Help People In Conflict". These gentlemen comprise the "The Center for Understanding in Conflict & The Center for Mediation in Law", based in Mill Valley. Gary is a mediation trainer, lawyer, and mediator based in Northern California; Jack is a former law professor at Columbia University Law School; and Norman is an author and former Zen abbot and practicing monk. We believe this group is at the cutting edge of developing a meaningful strategy for helping people to become unstuck in mediation.
All of the conflict professionals attending this course work regularly with families who are experiencing varying degrees of relationship crisis. Of particular focus was the high conflict divorce, where strong emotional reactions tend to have a major influence on how mediations unfold and upon their potential successes and failures. Often the parties' emotions can strike chords within the mediators themselves based upon their own life experiences, and so our goal in undertaking this work is to better understand not only your emotions but our own so that together we can navigate and move through conflict together successfully. Judgments, which are often unconscious, frequently impede the ability to move from the problem to the solution unless these judgments are investigated to some degree. Feelings always surround judgments, and are usually a reliable indicator that these judgments which are not evident are nonetheless in operation. By investigating these judgments and what lies beneath them to some extent in their own responses to the parties' expressions of conflict, mediators may be successful in moving parties forward when they otherwise appear to be stuck in impasses that threaten to end the process.
Mediation is not therapy. Even if you choose to mediate, or co-mediate, with one our DFMS mental health professionals (or divorce coaches in the case of Collaborative Mediations), the role of these experts is not intended to include therapy.
The process may nonetheless be therapeutic but only always as you invite and allow.
Understanding-based mediation is not intended to pry or force the parties' boundaries open beyond what they may be capable of or ready for. By this Blog I just want to acknowledge a possible role for de-escalating emotional dynamics within mediation by examining emotions and the judgments and pain that underlie them. I hope to introduce the idea that possibly addressing in some fashion the emotions and judgments that are an 'elephant in the room' anyway, and which can overwhelm the mediation process in important ways if not seen, is something that might better be faced head on.
At the commencement of our mediations, or at any other time, whether the dynamics of emotions that may affect your mediation is something that you want to discuss to some extent, are willing to share, or feel safe expressing or hearing about, is something for you each to decide as a set of ground rules that is not static but changes as mediation unfolds. These rules require consent of all parties and the mediator. As your mediators we cannot and will not force it; moreover, such issues are not what mediation is intended or designed to overcome or transform.
But if there are strong emotional dynamics that may impact nuts and bolts as we address your values and interests in the process of settling your matters, this would be a valuable beginning conversation for us to have. |
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