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I Am Pleased to Announce the Launch of
LOS ANGELES FAMILY MEDIATION SERVICES
Mediators and Co-Mediators Serving the Greater Los Angeles Area

• Retired Family Court Judge Gretchen W. Taylor

• Renowned Psychologist Dr. Jane Ellen Shatz

• David Hayes, M.F.T.

• Karen Horwitz, M.F.T.

I am available to serve mediation parties in the Los Angeles area as well, for selected cases.

We are proud and pleased to come together as a team of highly trained and motivated professionals, with over 100 years of combined family law and therapeutic experience, in an effort to provide a positive alternative to traditional divorce warfare.

We believe we can be part of your solution!

Thurman W. Arnold, III, C.F.L.S./Mediator

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 something of a set of ground rules that is not static but changes and the 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 dynamics that will impact the nuts and bolts resolution of your matter as we cover your list of values and interests in the hope of settling your matters, an availability towards these this subject is something you might want to ask us at DFMS about when we meet to begin the process.

    "(a) At a hearing on any order to show cause or notice of motion brought pursuant to this code, absent a stipulation of the parties or a finding of good cause pursuant to subdivision (b), the court shall receive any live, competent testimony that is relevant and within the scope of the hearing and the court may ask questions of the parties.

    (b) In appropriate cases, a court may make a finding of good cause to refuse to receive live testimony and shall state its reasons for the finding on the record or in writing. The Judicial Council shall, by January 1, 2012, adopt a statewide rule of court regarding the factors a court shall consider in making a finding of good cause.

    (c) A party seeking to present live testimony from witnesses other than the parties shall, prior to the hearing, file and serve a witness list with a brief description of the anticipated testimony.

If the witness list is not served prior to the hearing, the court may, on request, grant a brief continuance and may make appropriate temporary orders pending the continued hearing."

Family Code section 217 will cause a sea-change in day to day family court proceedings across our state, unless family court judicial officers ignore it to the limited extent possible by court rules.  It will likely have immense financial and resource consequences upon not only the courts but upon parties to family court proceedings.  It will force the state government in coming years to study whole new paradigms for resolving divorce and domestic partnership dissolution outside the adversary template, including those currently practiced in New Zealand and southern Australia. 

It will also pressure parties to consider mediation, and collaborative processes which occur outside congested courthouses, much more carefully.  The costs of adversary litigation are about to sky-rocket, making mediation even more appealing from a financial perspective (I have written extensively about the emotional and psychological benefits here an elsewhere).  There simply is no governmental money available to absorb the coming Elkins Onslaught. For more information about an alternative method for resolving family disputes, please visit us at www.DesertFamilyMediationServices.com.
  
At the same time, at least in the short run taken together with some of the other revisions that become effective next month, it may encourage more people to litigate more stubbornly and so make mediation seem less attractive than it did before the changes (just the reverse will be true).  Some folks will mistakenly assume that this invites the use of court hearings as a live-testimony forum for sharing unresolved complaints relating to their marriage or domestic partnership dissolution with the other party in open court.  Instead, judges will sustain objections to such irrelevant material and parties who seek to use Family Court as a platform to air relationship grievances will find themselves alienating the trier of fact in ways that will have adverse consequences to them beyond just the time and expense of the exercise. 

The purpose of today's Blog is to introduce you to section 217 and the new changes.  I will follow up with more articles in coming weeks.  Without a doubt the new rules will make all the information I provide on my websites more relevant and timely for my readers. 

    * In-Kind Division: Each party takes one-half of assets such as bank accounts and stock in a corporation, and/or one-half of the debts.

    * Trade-off Division: You may stipulate to settle your property disputes, without regard to value, by agreeing one of yoiu will take certain items of property, e.g., the furniture, and the other will take other items, e.g., the car.

    * Piece-of-Cake Division: This method gets its name from the common situation where two children have a piece of cake to be cut in half. To avoid the argument over who gets the "bigger" half, it is agreed that one will cut the cake and the other gets to choose which piece he or she will receive. In the marital property context, one party makes up two lists of the property in question that he or she believes are equal, and the other party chooses which list of items she or he will take. (You may want to agree not to break up sets, e.g., a dining room set, a set of dishes, matching art works, etc.) The piece-of-cake method is particularly useful for dividing furniture and furnishing that usually have a real value to the parties far in excess of their fair market value. The method is also useful in short-term marriages for dividing wedding gifts.

    * One Values, the Other Chooses: One of you places a value on each item of community property in dispute and the other party chooses those items he or she will take at the stated value up to one-half the total value. Alternatively, the party choosing may choose any, all, or none of the items, with any items not chosen going at the stated value to the one who set the value. An equalization payment can be required. In dividing furniture and furnishings, an alternative to piece-by-piece choice is to list furniture and furnishings room-by-room, and each party chooses by room.

    * You Take It or I Will Take It: One party places a value on an asset at which that party is willing to let the other party be awarded the asset, or else the former will be awarded the asset at that value.

    * Appraisal and Alternate Selection: An appraiser is selected by stipulation to value each of the items in question. The parties then choose items alternately until all items are taken. The one to make the first choice can be designated by the flip of a coin. Another approach is to let one party go first and the other party then gets two selections, after which choices are made alternately. It is usually preferable to agree that sets not be broken up. It might be agreed that if a party takes a set it counts as that many choices, e.g., a dining room table and four matching chairs counts as five choices, and the other party then makes the next five choices.

    * Sale: The parties agree that the items in question be sold at a public sale or to a particular buyer with the proceeds divided equally, or in whatever other proportion is necessary to accomplish a satisfactory or equal division, considering the other marital assets or obligations each is receiving. For modest furniture or furnishings, the sale may be a garage sale.

    * Sealed Bid: Each of the parties submits a sealed bid on each item of property in dispute, using the same list. The bids are opened simultaneously and the one bidding the highest amount for an item gets that item valued at the figure he or she bid, with an equalizing payment to be made, if necessary. This method can also be used for disposition of the family home, other real property, or a family business that both parties have operated, where each seeks to have it awarded to him or her.

    * Interspousal Auction: This is a straight auction between the parties, usually with an agreed minimum incremental increase over the last bid being required. The high bidder gets the asset at the amount of his or her bid with an equalizing payment being made, if necessary. To the extent a major asset is involved such as a family business or real estate, the stipulation might provide that each of the parties have an advisor present during the bidding.

    * Arbitration: The valuation and division of the community property in question is determined by an arbitrator selected by the parties. The parties should understand that the arbitrator is not required to follow the law, and his or her decision, for all practical purposes, is final and not subject to appeal. Because arbitration usually takes much less time than a court trial, the parties might consider stipulating with your consent that you hear the case as an arbitrator.

    * Mediation: Mediation is greatly underutilized in family law cases. It can be a very effective and satisfying way for the parties to reach agreement on the value and division of their marital property.

    * Real Property: If both parties want community real property, one of the foregoing methods of resolution can be used. If neither wants it, it can be listed for sale with a broker stipulated to by the parties, at a listing price recommended by the broker. If one wants the property but the other feels that he or she is offering too little, the latter can list it for sale with a broker of his or her choosing. If the property does not sell within a specified period of time, the listing price will be periodically reduced until it reaches the figure where the net proceeds would be equal to what the other party offered. The property then goes to the offering party for the amount of the offer.

    * Combination: When more than one marital asset is in dispute, one of the foregoing methods might be used for one asset, while one or more other methods might be used for other assets.