Divorce Choosing Mediation Over Litigation Written and Presented by Belinda Etezad Rachman http://www.divorce-inaday.com Hello, my name is Belinda Etezad Rachman and I have been a family law attorney since 1996 but maybe for our purposes and more importantly, I was a special education teacher for many years with a Masters in teaching severely emotionally disturbed. When you think of what a teacher needs to be able to do, getting kids to play nicely and share is right up there and that is also the job of a mediator. For the first 8 years of my legal career I had a traditional adversarial practice. Very quickly I began to see the damage our adversarial system does to co-parenting relationships. I was a child of divorce and taught many children from dysfunctional families, many of whom were divorced. The cost to children when their parents fight is terrible. I just didn’t want to be part of the problem if I could be part of the solution so I walked away and have done nothing but mediation in the following years. I hope this audience will be other nice divorce lawyers who recognize themselves in this story. You too feel conflicted about being part of a system that too often works a LOT better for the lawyers than the clients. You have a big investment in your education and want to use it, but not to hurt people. You want to really help people but know that is hard working within the existing system. My intention for this class is to give you an overview of how a divorce mediation practice can work creating win/wins for everyone including you. I want to build a nationwide network of experienced divorce lawyers who are forces for good and really serving the interest of families instead of lining their own pockets at the expense of their clients. The ultimate goal is to transform the way people divorce in this country from litigation to mediation. An overview of how divorce mediation can create win/wins for everyone including you. Transform your adversarial divorce practice so that you actually help people instead of destroying any possibility of a co-parenting relationship after the case is done. Not just for sensitive lawyers, this course will benefit all lawyers who know our adversarial system is not the right way to resolve family issues. Find out why more and more lawyers are leaving behind the battle and going towards the light to join the Peaceful Divorce Movement. 1 DISCLAIMER: The following materials and accompanying Access MCLE, LLC audio program are for instructional purposes only. Nothing herein constitutes, is intended to constitute, or should be relied on as, legal advice. The author expressly disclaims any responsibility for any direct or consequential damages related in any way to anything contained in the materials or program, which are provided on an “as-is” basis and should be independently verified by experienced copyright counsel before being applied to actual matter. By proceeding further you expressly accept and agree to Author’s absolute and unqualified disclaimer of liability. To succinctly define the system we have now and why it is so problematic, let’s start with the inherent conflict of interest between lawyers who are paid by the hour and thus heavily incentivized to drag out a case vrs. the client who wants to complete their case for as little money as possible. Here in CA where the average contested, attorney driven case costs $20,000 per side and the attorney has the power to put a lien on the client’s home and force a sale for fees, the conflict of interest is enormous. Unfortunately for most clients, they don’t read the fee agreement or if they do, they don’t understand the danger of letting their lawyer make all the decisions about how to manage their case. After all the expensive fighting and mud throwing is it any wonder the process wrecks the parents co-parenting relationship while it leaves people broke and angry. And fairness has nothing to do with outcome, only what you can prove. This is not a satisfying experience or outcome for either party. Even though a lot of us earn a lot of money, look at how much burn out there is. We also experience stress from fighting and sooner or later many of us just don’t want to work in such an adversarial system. How many of you dream of starting other careers? So what is the Alternative? I would like to suggest to you that the future of family law is in mediation Most of you probably know that mediation involves a neutral 3rd party who helps people come to an agreement. In CA you don’t have to be anyone special to call yourselves a mediator and unfortunately for a lot of divorcing couples they get involved with clergy, therapists or others who are not familiar with the law and come to an agreement that is NOT in their best interest because they did not make informed decisions based on accurate legal information. It is vital that those working as divorce mediators be experienced family law attorneys. This is a growth industry and you can be part of the solution instead of part of the problem. People out there really need your help but in a way you might not have thought about. Instead of representing someone and trying to force a certain outcome, mediators can explain the law to couples in a way that is helpful and not incendiary. We all know lawyers who give their clients unreasonable expectations as a way of making sure their client will litigate if a reasonable offer comes from the other side. Imagine a whole other mindset where it is not the husband against the wife but the husband and wife working together to solve the puzzle of property division, support and custody issues. That can only happen when you cut out the gladiators and face it, litigators are fighters at heart. When you are a mediator, your JOB is to create win/wins whether it is coming up with creative ways to share the kids or dividing property in a way that everyone can still use it sometimes. 2 Classic mediation that is taught in law school involves two mediators who are non directive and elicit solutions from couples vrs. what I do which I call yenta mediation. For those who don’t speak Yiddish, I mean lone ranger/solo mediation that is very directive because we know what they don’t. It would take way too long to get a couple to figure out what we can immediately see. I never liked the idea of Freudian analysis because the therapist never tells you anything, you are supposed to figure it out for yourself. Forget that, I don’t have the time and the couple doesn’t have the ability so why not cut to the chase. Of course they have choices, but YOU are the ones telling them what the choices are. We have all waited our turn in court and heard hundreds if not thousands of other cases. You pretty much know how the judge will rule in most cases and if you don’t because it can be so random and arbitrary, don’t you think it would be a lot faster, easier and less expensive to help a couple negotiate a fair deal? In your experience of the adversarial system, you are thinking, there is no way a couple who is angry at each other is going to define fair in the same way, so here is the next piece of the puzzle. Mediation is NOT for everyone. 15% of the population are what therapists call, high conflict personality types and these folks are NOT good candidates for mediation. Bill Eddy who is a therapist/lawyer specializes in training on the subject of high conflict personality types. He wrote an article called . Personality Disorders Appearing in Family Court and wrote.... Probably the most prevalent personality disorder in family court is Borderline Personality Disorder (which he calls BPD) -- more commonly seen in women BPD may be characterized by wide mood swings, intense anger even at benign events, idealization (such as of their spouse -- or attorney) followed by devaluation (such as of their spouse -- or attorney). Also common is Narcissistic Personality Disorder (NPD) -- more often seen in men. There is a great preoccupation with the self to the exclusion of others. There are 2 types of NPD 1) may be the vulnerable type, which can appear similar to BPD, causing distorted perceptions of victimization followed by intense anger (such as in domestic violence or murder. Or 2) this can be the invulnerable type, who is detached, believes he is very superior and feels automatically entitled to special treatment. Histrionic Personality Disorder also appears in family court, and may have similarities to BPD but with less anger and more chaos. Anti-social Personality Disorder includes an extreme disregard for the rules of society and very little empathy. (A large part of the prison population may have Anti-social Personality Disorder.) So you need to weed those folks out before you even start. I have a simple 7 question assessment that has worked well for me and would for you too. If you post these questions on your website, people can either buy in or out of the idea of mediation and save themselves and you a wasted appointment where you or they see they are not good candidates for mediation. The following questions show who mediation works for and who it won’t work for (use my own questions) 3 If the potential clients are parents, there is strong support for why mediation creates better relationships between non custodial parents and the kids that should be strong selling points for why couples ought to be working with us. long term studies show more parental interactions over the course of a child’s life when the parents used divorce mediation than contested cases that went through the court system. There is speculation that the reason non custodial parents saw their children more often and had more regular contact if they had engaged in mediation is due to the fact that things never got nasty between the parents, so they had a more comfortable time dealing with each other over time than did the parents who had a traditional (in other words, TOXIC) divorce and hated the other side so much, it wasn’t hard to walk away from their own children if that meant they could avoid the other parent. There was a much higher percentage of parents who didn’t pay support in the adversarial cases so for those reasons alone, mediation should be the first choice for parents and a divorce mediator is smart to point out how couples will do better by working together and cutting the separate lawyers out of the deal completely. So what is the PD process? After you have filtered out whom you don’t want to work with by directing them to your website to take my little assessment, the next step is for them to do their “homework” which consists of each party doing their own income and expense declaration and for the couple to do a joint Schedule of Assets and Debts so you can see what is on the table to be divided. They need to start collecting the data but they don’t need to have completed their homework in order to start the case. At your first meeting you welcome them and say how happy you are to meet nice couples who are willing to work together because the alternative is so nasty. Find out if they are children of divorce or been divorced before. Ask them if they have friends who have told them their divorce court horror stories. You always want them to understand their BATNA (best alternative to a negotiated agreement) so they keep focused on the necessity for making mediation work. When a couple comes in explain the law regarding, 1) property/debt division 2) support and 3) custody. They need the basic info about community property, separate property, maybe run some support numbers to see how different the range of support would be depending on the income or custody scenarios. They will probably have legal questions that can be answered at this time. There needs to be a whole discussion on who is going to be the petitioner and who will be the respondent. I let them know that the ONLY difference, since the court doesn’t treat the petitioner as being right and good while the respondent is wrong and bad, but that the only difference is that the Petitioner’s initial court fee has been paid and that over the years it goes up but if they never go to court because you build so many back doors into the agreement, then it won’t matter. This is going to be a big news flash to some people listening today.... The respondent never needs to pay a first paper fee if you file the right judgment package. The court tells everyone they need to file a response, but that isn’t true. Of course they want the filing fee, but the idea is to save our client’s money and why pay a filing fee that isn’t necessary. So I am going to jump ahead a little bit here and let you know how to avoid the Respondent’s first fee and what to file because if all you have done is litigation, you might 4 not have experience in how to file a default judgment. In order to avoid the first fee, you need to file a Declaration of Default and a Request to Enter Default along with each party’s Declaration Regarding Service of IED and DOD, a proof of service, notice of entry of judgment and marital settlement agreement attached to the judgment form. If they have children, whether or not there is a support order, you must also file a Child Support Case registry form for both sides and enclose a Notice of Rights and Responsibility form to each parent along with the judgment. For those who have never done a default package, it is important to make two copies of the Request to Enter Default, the original goes to the court and a copy is mailed to the Respondent. Always let the parties know what to expect so they aren’t shocked when they see the Summons that warns the respondent to file a response in 30 days or when they open up the Request to Enter Default. They need to know that it is a good sign when this form shows up at their house because it means someone down at the courthouse is touching their file. OK, now that we have talked about what forms to file, let’s go back to the initial Client interview. See what they want and what they are thinking about. You need to spot the potential issues and see where the agreements exist as well as the conflicts. If you can see hot disputes, calm the waters by reminding them they will get more by coming up with an agreement than if they fight. I use the pie example. You have a pie to divide. You can get half the pie or you can hire the lawyers and they will get their share. Ask them which way they will get more, by fairly dividing the pie in half or giving part of the pie to their lawyer. If one person has unreasonable expectations I call them on it. But I always let the clients know not to shoot the messenger and that it is your job to act as the reality sounding board as to what would happen in court so they don’t think one person is going to get all the assets while the other person gets all the debts Look at their finances, can they afford to have 2 households that will accommodate the kids or is nesting a better alternative. For those who are not familiar with that term, nesting is where the children stay in the house and the parents go in and out when it is their parenting time. When the parent is not with the child they can share a studio or one bedroom apt. which will save so much money by avoiding having the buy or rent a place that is big enough to accommodate the kids. Point out to the parents that this is their divorce and not their children’s divorce so the game here is to minimize the stress and trauma to the kids. It is bad enough not having both your parents around without having to lose your home, neighborhood, friends and maybe even school by everyone having to move. If a move can be avoided, even if only for one year while the kids get used to their new situation, that should be attempted. The norm in CA is for all issues to be decided prior to the court ever getting involved with property division. Most jurisdictions will take at least 6 months to a year or even more before a house would be ordered sold so there is no reason to rush the family out of the house unless there are overriding financial considerations. The children will do better by not having to move out of their home. BUT if the parents don’t do some kind of nesting plan, which ever parent keeps the home will have a foot up in the custody situation because most children prefer to stay in their own home than go to the non custodial parent’s home. Even if the parents are not doing a 50/50 timeshare, nesting still makes sense if the primary goal is to protect the children. If you have a situation where one parent has custody and the other one has visitation, say every other weekend and one overnight during the week, is it really that much to ask for the custodial parent to make 5 other arrangements for a few nights a month so that the children can stay in their home. If the parties are putting off the house sale, it is still the non custodial parent’s home, why shouldn’t they get to use it too. Maybe the price of one parent getting to keep the home to live in is that they must share it when the parent has time with the children. You want to always be looking for win/wins. The home is often the biggest asset a couple has and can be hotly contested. The best way to resolve that issue when the couple can’t agree who should live there with the children is to take the home off the table completely. Ask them what their plan was for the home before they considered divorce. Were you planning on dying there and leaving it to your children? If so, why not draft a trust that give it to the kids but where the parents can always agree to sell it if it reaches a certain price or if a certain amount of time passes or if the resident spouse later marries. If you can deal with the house by showing the couple that their original plan can still be accomplished through estate planning AND they are always free to sell it later, you will not have the unfair result of one party taking it as marital property while waiving rights in another asset like a retirement and then leaving it to the kids which is what the parents were going to do in the first place but now that parent has no retirement vehicle. In a nesting situation where both home owners get to enjoy the home with the children, the home doesn’t need to be divided at the time of the divorce. You can be very creative when the couple works together to find solutions that work for them instead of fighting in court where the home will probably be sold just to pay legal fees. I have never met a couple who has not made a child sharing plan with me but if you hit a snag and can’t come to an agreement regarding custody or visitation, pitch the Special Master idea. If they can’t agree, they will have to leave it up to a stranger, right? Isn’t that what a judge is? Why would you pick an expensive stranger who isn’t necessarily trained to figure out who would be the better parent? I like to tell them the story of the commissioner whose only experience in Divorce court were his own 3 divorces, His career had been in criminal law, he had NO KIDS, he didn’t know what separation anxiety was and if you are childless and don’t know what that is, it is a stage that all children go through where they become fixated on their primary parent and get hysterical each time that parent leaves the room. It happens when a child is between 2 and 3 years old The commissioner was mad at mom because he didn’t think she was supportive of child sharing but she was actually concerned that the child was very uncomfortable with a father she didn’t really know. He gave this 2 ½ year old kid to a dad she barely knew and I am sure it ruined that child’s life. That kid lost all trust in her mom, she didn’t understand why she didn’t live with her mom anymore and had to live with this strange man. It is so expensive to hire attorneys to get the ultimate answer from the judge. Why not go to someone who is TRAINED in getting to the truth like a family therapist or child therapist. You can get a much faster and less expensive answer from a therapist AND it is a GREAT opportunity for the lawyer to set up a beneficial referral relationship with therapists. They have our customers and we have theirs. Many therapist won’t want to act as special masters because they are not used to telling people what to do. But once you explain that this couple wants to avoid court because they know how destructive it is and you are NOT starting up a therapeutic relationship, they tend to come around. 6 A mediator has a powerful opportunity to head problems off at the pass by having a whole conversation with parents about how they MUST align themselves so that the children never play them off against each other. As experienced divorce lawyers we have all heard the tales of why the mom or dad HAS to go back to court because the other parents is doing this or that. You know the main reasons people get divorced in the first place is because they have conflicts in one of two areas, they either fight about how to raise the kids or how to spend or save money. For some reason authoritarians and free spirit types are attracted to each other and it isn’t a conflict until children start to grow up and their wildly divergent parenting styles clash or spenders and savers hook up and drive each other crazy because they each see the role of money so differently than the other. But you have this couple in your office and can show them some of the traps as well as tricks to avoid future fights about the kids. I explain that they are not doing their children any favors by playing good cop/bad cop with the kids by one parent being the pushover and always saying yes while the other parent has to be the disciplinarian. I let the parents know that if they don’t have consistent rules and consequences in each house, the kids WILL play them off against the other and if that happens the parents are dead meat because it really is the parents against the kids as they grow older. If the parents don’t have a firm grip by the time the kids are 10 or 11, you are going to have a wild teenager who is going to get in a lot of trouble and cause you guys a lot of sleepless nights. So now is the time to talk about real life situations that will come up. When the kids come asking for some new toy, overnight with a friend or what ever they want permission for, BOTH of you always have to say the same thing..., “That’s interesting. I will have to talk to your mother/father about that.” By showing the kids they can’t get around you, but they have to go through both of you, you are strengthening your positions as parents and insuring that the children learn who is the boss. Any sign of weakness and they will know you are no longer in charge. Kids need consistent boundary lines. I let the parents know to EXPECT there WILL be times when they don’t agree on some child issue, the example I use is the honor of your child being invited to participate in a prestigious program taking place in a dangerous city where one parent wants the child to go and the other parent doesn’t. Even if the parents don’t have shared custody, they definitely have joint legal custody, so they are at a standstill, no one can say yes or no, they need help and it won’t come in the form of a divorce lawyer taking them to court. This is where I build in the powerful remedy of a Special Master who WILL make the decision. I already told you about using child therapists or couple’s counselors for custody decisions if you really can’t come up with an agreement, well even if don’t need them now for that decision because you and the parents have come to an agreement, you MUST include it here. The language I use is some variation on the following, you can substitute mother for father, it doesn’t matter since both have input.... Should there be any disputes regarding the children, the parties have agreed to avoid court and shall use the services of a family or child therapist to resolve any issues. Mother shall give Father a list of 3 therapists who have agreed to act as Special Masters and he shall chose the one they shall use. The parties will adopt the recommendation of the therapist as if it were a court order. Each party shall pay for one half the cost of the special master. 7 Now for couples who have a person whom they trust to act in this capacity, they can save the a lot of money. I always ask them if there is anyone in their lives who has a proven parenting record. If no one comes to mind I ask, who do you know who is exactly the kind of person you wish your kids would be like when they grew up. THAT person’s parents did a really good job. You probably don’t even know these parents but I’ll bet you if you called them up and said, “I have been your son or daughter’s friend for a long time and I just think the world of him/her. I KNOW you made a lot of good parenting decisions when you were bringing them up and I’ll bet you could really give good advice if my wife/husband and I needed your help. We have divorced without fighting or going to court and we want to make sure we protect the children from ever getting caught in the middle of a nasty court fight but we know issues might come up where we don’t agree to a solution. We want the help of the best parent we can find and when we can’t agree we want to be able to tell our sides to that good parent and then let that parent decide what we should do. We would like that good parent to be you. What do you say, is that something you would feel comfortable doing?” Who turns down such a request? Who doesn’t like to be the expert whose advice must be followed. You could make a deal that when ever you need them, you will bring over what ever they want to eat for dinner and go over your dispute at that time. When you compare attorney fees, you could bring them dinner from the most expensive place in town and it wouldn’t be as much as one hour of attorney time. While we are handing out good parenting advice, let’s deal with mom and dad’s future boyfriends and girlfriends. As the child of a nasty divorce myself and having a dad who fancied himself as THE playboy of the western world, I finally gave up on establishing relationships with any of the parade of women who showed up on my weekends because like trains, I knew another one was coming. Children should NOT be exposed to anyone unless the parents KNOW this is a SERIOUS relationship. And the parents need to be REALLY careful of whom they bring into the relationship because with so many marriages ending in divorce, there is a good chance they will be dating divorced people who have NOT had a peaceful divorce and don’t get or worse yet, feel threatened by your coparenting relationship. I warn my couples to let people know from the very beginning that they are child focused and expect anyone coming into their lives to be civil and friendly with the other parent and then I tell the Demi Moore, Bruce Willis Ashton Kutcher story and it goes like this... My vision for you is to be the Demi Moore/Bruce Willis in your neighborhood. When they got a divorce Bruce could have flipped out that his kids were being raised by some young stud. He could have gotten all defensive and belligerent but they knew that they had a long haul raising these girls and needed to work together and be cool with each other so that is what they did. In fact, I met a young woman who told me the story of her parents divorce and it was so inspiring I was REALLY moved, touched and inspired by what divorce can be, so much so, I want to tell you what she said to me. Her dad caught her mom and his best friend together and he lost it. He went through all the stuff you would expect. Not only had his wife been unfaithful but his BEST FRIEND had betrayed him. Things got as bad as you can imagine but before anyone got killed they parents came to the conclusion that this 8 angry road wasn’t going anywhere good and that they NEEDED to be friends and so they did. The mom married dad’s best friend and eventually dad remarried too. They each had kids with their new partners and they ALL celebrate holidays together. They ALL go on vacations together. The girl told me that after her parents became comfortable with each other again, she never felt like she lost her family, she felt like she gained a whole new one. How cool is that? Why can’t you be the next Demi Moore and Bruce Willis? That is my vision for you and I think that is why you are here with me. You WANT to protect the kids from being caught in the middle and as long as you guys are cool with each other, are not petty and are respectful and generous, all of you will be much better off. Property division and support are easy. There are lots of ways to skin a cat and if you have practiced family law for a while, you have seen most potential issues resolved in court already, either in a case you had or one you watched as you waited for your turn. Community property is divided 50/50 in what ever way makes most sense. There are fabulous experts who for a small fee will run different scenarios that show tax advantages and long term value going out over time. Why not establish mutually beneficial referral relationships with they folks. Let other people who know more about this area go over the tax implications of one taking the home and one taking the retirement if that is what they are going to do. I am very clear that I do not know much about taxes. I never even cracked the book in law school. I just barely passed with a D. That is NOT my thing but my clients need to know what implications there are when they are dividing their assets. If there are complicated assets like businesses, you may need a forensic accountant but as long as the parties are motivated to avoid court and use the values from the accountant, there will not be a battle of the experts and the savings in legal fees would probably offset any valuation issues anyway. Another thing to keep in mind is that if there are support issues involving self employed people, the supported party is going to have a really hard time collecting unless the payor feels like it. Knowing human nature it is no surprise that people who have crafted their own agreement tend to live by it more readily than those who have been ordered to pay. Most people like to control their own lives. They like to be independent and not be told what to do. When people mediate THEY are in charge of what they will agree to. No one is imposing anything on them. The longitudinal studies I talked about before proved that couples who engaged in divorce mediation instead of litigation were FAR, FAR more likely to never go to court for parenting or financial issues as compared with the litigation group who never learned they could settle their own issues with just a little help. If you can be part of a process that liberates people from ever going to court because you showed them they could divorce without fighting and you have built in back doors to avoid court, isn’t that going to feel better than the stress that comes from days spent in court waiting to go on where the game is win/lose and you know the kids are in the middle of a war zone. There are many back doors to build into the agreement that will address anticipated issues. Sooner or later there will be a change in circumstances where support needs to be modified. Why not have an automatic modification provision where the couple agrees to cooperate whenever either one seeks a modification. People usually have their taxes done by April 15th. That would be a great time to exchange income info so that the numbers can be run by you or any paralegal with the support program. For $50 a paralegal can run the numbers 9 and draft a simple stipulation to file with the court. The game is always to build in structures that support court avoidance. I TELL the couple we will NOT be fighting over the contents of their home. I explain that there are a LOT of things that only one person will want and to go through the home and identify who wants what. For the things that only one side wants, fine. You are done. For the things that both of you want, identify ALL of them and flip a coin one time. Heads, the older person chooses first, tails the youngest person chooses first, going back and forth until all items have been chosen. You don’t have to consider value, just pick what you want and flip a coin for everything else. Easy. I just saved them at least $10,000 in attorney fees. Divorce mediators need to look for areas where both sides benefit. For taxes I always say who takes which child as their tax deduction and also add something like this... It is the parties intention to minimize their tax obligations by cooperating to share the tax deductions. For all following years they shall cooperate to maximize tax savings by allocating the tax deduction and decision as to who should take the children by computing what each would owe or receive as a return by each taking the deduction for only their child and each not taking the deduction for their child and giving it to the other. Should either party benefit more, by taking the other person’s child as their deduction, the person taking the deduction shall pay the difference of what the other person would have received had they taken the child as their tax deduction or make what ever payments are necessary so that the person giving up their deduction is in the same position as if they would have taken their child. The point of this talk has been to give you an insight into how divorce mediation works with some practical tools to help you transition into that field if you are so inspired. If you have been a divorce attorney for any length of time, it is clear that the adversarial system creates a lot of chaos and anger in the lives of divorcing couples. When children are caught up in the process, they are more often than not, hurt by the negativity that exists in the home, even when the parents don’t directly talk about it. And you know when parents are angry, they DO make snide comments about the other parent. God knows my parents did and 50 years later, still do. We have an intimate knowledge of the law and have seen the court make decisions, some fair, some not fair at all. Most decent people just want something fair and we are in a great position to being out their better angels but there are many attorneys who make it a point to stir up that other darker side because that is how they will make the most money. If you want to get out of that system so that you and your clients can be protected from that toxic world, I encourage you to join the peaceful divorce movement. When the phone rings and the voice on the other side asks about you representing them, pitch mediation. Give it a try. You will REALLY be helping people if you can keep them out of court and if you are the sensitive type, you will be saving yourself too!! 10
© Copyright 2026 Paperzz