From the desk of Daniel R. Gold, Esq. TLD Partner
There are several Alternative Dispute Resolution (ADR) options in family law cases, which have continued to gain favor for parties seeking to reduce their fees in protracted Court proceedings. One of these is collaborative law, a process in which the lawyers on both sides are laser focused on getting the case resolved outside of court. With respect to the collaborative law movement, I think that it is a worthwhile endeavor, but it can also be problematic. Lawyers who engage in the collaborative law process are required to terminate their client relationship if the parties cannot settle the matter and it goes to court. The collaborative model cynically assumes that lawyers who do not take part in collaborative law are only interested in ensuring that their client will wind up going to court so that they can generate more fees. The reality is that nothing could be further from the truth. If you have taken an oath and you have any ethical backbone you are not going to take advantage of your client’s case: you are going to do what is necessary to resolve the case in a cost-effective matter. Certainly, many attorneys enjoy advocacy for their clients, but if litigation is not in the client’s best interest, counsel have a duty to ensure that the collaborative law process or some other form of ADR is in the arsenal of options to resolve the client’s challenges.
There has been an increasing use of mediators and private judges who are employed to sit down with the parties-either with or without their lawyers-in an attempt to resolve the case without litigation. There has also been a trend towards the use of private judges in family law hearings because of the congestion in the court dockets. Generally speaking, it is often preferable to pay someone to be available to hear your case when you are ready to take action, than to wait for a court to be ready to hear your case. Ultimately, these private arbitrators give the parties more control over resolving their case, and it allows them more freedom to do so. Newly announced court cutbacks in California will only add to the increased uses of private judges.
Consequently, I always counsel my clients at the outset that ADR is an option. However, I still believe that formal discovery is necessary, at least to some degree, prior to engaging in ADR. I believe that the client should be fully informed before going to ADR, as there are risks involved in entering into a settlement if the client does not understand all the facts. Formal discovery compels a response that is under penalty of perjury. If a spouse is not forthcoming in discovery, sanctions can be issued under both the California Family Code and California Code of Civil Procedure.
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