Do I Need an Attorney in Family Law Mediation?

Wednesday, September 5th, 2012

Having an attorney is not necessary during family law mediation, but my clients are welcome to bring them if they wish.   I do tell people who decide to use my services as a mediator that I do not give legal advice.  I tell them that if they wish to obtain legal advice then they should consult with an attorney to obtain that advice.  I also tell them they are free to talk to an attorney at anytime during the course of the mediation.  Because what they and their attorney talk about is confidential  I cannot and would not ask what advice was given, but I do want them to disclose that they talked to an attorney.

The reason attorneys are not necessary  in a family law mediation process is very simple:  there is no strict rule or magic of law that the people involved must follow to resolve the family issues which are in conflict or which need to be addressed as part of their agreement.  Although a Court may have to apply a rule of law or court decision if the people cannot agree, their agreement is what the Court must follow.  As a mediator who knows those rules and decisions, it not my job to advise as to what those rules may be:  as long as both parties are negotiating equally and reach agreements that meet their individual needs and interests.  It is my job and obligation to help both parties reach a fair and equitable agreement and to make sure that they are negotiating in good faith.  I can if necessary adjust the type of mediation from facilitative to evaluative in order to meet that obligation and if that is unsuccessful, then I will withdraw as the mediator.    

If they choose not to get legal advice and they want my services in preparing the necessary documents to formalize their agreements I again tell them they should have an attorney review the documents, especially if part of the agreement may have some legal significance in the future.  For example, they agree to decide to divide one or both of their retirement plans.  Because there are additional agreements, known as QDRO’s (Qualified Domestic Relations Orders) which may have to be reached regarding the retirement plans,  they may wish to get advice before they enter into those agreements.

If the parties have been referred by an attorney or attorneys for mediation, then I generally do not prepare the final documents which formalize their agreement, unless the clients and the attorneys also agree that I do so.    

What is Family Law Mediation

Tuesday, September 4th, 2012

Many people involved in family law cases have heard about mediation.  Some have read about it.  Some have heard others talk about it.  Some, especially in California, may have heard about court ordered mediation.  Usually what they may have heard or what they may assume, is not always correct.

Mediation is nothing more than a process used to resolve disputes, whether legal or not,  between two or more people.  Mediation is best known as a one of the methods that is referred to as ADR:  alternative dispute resolution.  It is an alternative to a legal resolution.   I like to think of it as the best way of resolving family law disputes. 

In mediation, the people involved, with the help of a trained 3rd Person: the mediator, meet and discuss the issues that are in dispute and negotiate an agreement that meets both of their needs and interests. Mediation is voluntary, confidential and nonbinding (at least until the parties agree).  It is non-adversarial.  In other words,  the parties do not need lawyers representing them in mediation because they don’t need to persuade the mediator in any way.  They aren’t in mediation to persuade or convince the other person to agree to their plan or desires.  They are there to reach an agreement with the other party.

Many believe that mediation is an ancient activity and historians have reported on cases where it was used in Phoenician commerce.  The practice is believed to have been developed by the ancient Greeks and was later recognized as a tool under Roman law.  And of course, here in America almost everyone recognizes that mediation was and very much still is part of the American Indian culture where the mediator is regarded as a sacred figure, worthy of particular respect.  The role is recognized to exist in the traditional wise men, tribal chiefs or panels of elder leaders.  There are many other communities or societies that use this peaceful method or resolving conflicts.  

Having spent  over 35 years representing families and members of families in conflicts I am convinced that the best way to resolve these conflicts is with the help of a knowledgeable and experienced mediator.

Child Custody

Saturday, April 21st, 2012

Parenting issues are often times the most emotional issue that a family must meet when the parents decide to end their relationship.  It can also generate high legal fees if the parents cannot resolve their differences.  More importantly in the great majority of those instances where the parents cannot agree in a reasonable and timely way, the children become entangled in their parents conflict and emotions–whether the parents intend that to happen or not. 

Like all the disputes which arise when parties end their marriage, the Courts have certain “rules” and policies that they must follow in making decisions about the children–but they also have a great deal of discretion in how they apply those rules and policies–and they are seldom overruled by higher Courts.  .  The best decisions are those  be made by the parents and not the person in the black robe.

 If you have questions about your children then our office can give you the advice and counsel you need to understand how the Court’s apply what is known “as the best interest of the child.”  We can explain how your children’s desires can be conveyed to the Court and we can give you the tools you will need to communicate  to the Court the necessary information for it to make a decision that will hopefully be what you believe is in the best for your children.

Call 707-999-0740 for an appointment.

Support Issues

Saturday, April 21st, 2012

Child and spousal support are two important areas for both spouses when they decide to end their marriage.  If the parties can agree on what the amounts should be then the Courts will accept their agreement.   However, if they cannot agree then the Court must follow certain rules.

Child Support:   In California–and most other states as well–the law provides for what is called “presumed support”  or as judges and lawyers call it: guideline support.  Guideline support is calculated by computer software and is based on a formula that has been adopted by state legislature.  It is based on

(1) the earnings on both parents–since both parents are responsible for the support of their children

(2)  the number of children and

(3) the time the children spend with each parent.

Although the calculation of child support is easy once the numbers are known–some of those numbers can change depending on how they are presented to the Court.  In addition, the obligation of the parents to support their children and their earning ability can have a role.  In California, a parent can get help from the local child support agencies with establishing support as well as collecting it.

Spousal Support:

Spousal support is often times a two-step process:  Temporary support and permanent support.

Temporary spousal support is what a Court may order while waiting for all the issues to be decided in the dissolution proceeding.  It, like child support, is  called “guideline support” because almost all California Courts have adopted a formula approach to temporary spousal support.  Also like child support,  temporary spousal support is usually based only on the earnings of the respective spouses. 

Permanent spousal support is what a Court orders after the community property of the parties has been divided.  All though permanent spousal support is also based on the earnings of the spouses,  it is not based on a formula or computer calculation, but also on a number of other factors in the Family Code.  Those factors include such areas as the standard of living of the spouses, the length of the marriage, ages and health and ability to earn.  

 Spousal support, both temporary and permanent, is calculated after reducing the income of the paying spouse by the amount of child support that spouse may be paying.

Call C. Richard Urquhart at 707-999-0740 for an appointment.  We can give you the information and advice necessary for you to understand your rights or obligations regarding child and spousal support.