October 2009 Archives

October 31, 2009

Amateurs Doing Mediation in Divorce Cases in California:

On a law practice website I share with a friend, we have an article about non-lawyers and inexperienced lawyers pretending they can mediate a divorce settlement - sure, they MIGHT be able to help the parties achieve a fair and cheap resolution of their issues, but if that happens it is by accident.

An essential part of the process is that each side knows his or her rights. These cases aren't about two businesspersons or two neighbors fighting over a contract or boundary dispute, it's about fundamental fairness between two people who owe each other about the highest duty known to the law: That, coupled with the ability of each to continue to function financially, to provide housing and food on their tables, plus some semblance of a normal standard of living. Half the process is ensuring that each party knows his or her rights, and the other half is getting them to be reasonable in assessing the alternatives.

Within the last month, I've had two prospective clients come see me who have been in the mediation process with unqualified mediators. In one case, two "housewives" with no semblance of training in law or mediation, have a website - they are giving the married partners their untrained version of family law, performing guideline calculations with no evidence they know what judges do with various financial issues, and when they are done they are preparing a marital settlement agreement, which is the unlawful practice of law.

In the other case, the parties have been before a trained therapist for more than 2 years, and have not a single written agreement to show for it. Has it lasted so long because they are progressing to a meaningful conclusion? No evidence of that, and the parties don't seem to be getting along well, either. Do they know anything about the law? Not much from what I could tell.

If your goal is to gain an advantage because you know more about your rights than your spouse, you may perceive it is to your advantage to drag him or her to an untrained person to mediate the divorce - on the other hand, you may be in for an expensive litigation battle when the other decides to set aside your divorce decree and require you to start over, or in anger abandons the process and proceeds to litigation.

Your choice of mediator should include only those with a substantial background in family law, and mediation training.

October 26, 2009

Banning Divorce in California...

I recently heard a news story from KNX Radio in Los Angeles that there is a petition drive to put an initiative on the California ballot to ban all divorces. The expressed reason is that divorce is a sin.

The petition drive may, or may not, be a joke. I'll leave it up to you to decide whether to sign the petition when it comes to a shopping center near you. I could always give up family law and start practicing criminal law again - without divorce, violence may be the only way out if your spouse doesn't have the common curtesy to die of natural causes - that might spike the crime business. :)

Those of use who practiced law when divorce required proof of fault remember that divorces still happened, but they were even more messy than they are today. It will be fun to watch the debate, however.

October 4, 2009

Gov't Regulation and Lack of Follow Through:

There's a story everyone should read in the New York Times. It is about a young woman, paralyzed from the waist down, as a result of e. coli tainted hamburger.

This is a rare, but violent case, in an industry under-regulated, and heavily protected by the wealth of the industry that cares more about providing us cheap beef than safety. A few years ago, a best seller [Fast Food Nation] detailed the problems in the beef industry, but illustrates what happens when an industry provides its own regulation, and government inspection isn't adequately funded.

This shouldn't be a liberal/conservative issue. This is our health - how much of a guaranty do you have that in a restaurant, or even in your own home, that the cook has killed the bacteria in cooking? What price do we pay when we don't adequately regulate business?

Do we prohibit litigation ["tort reform" as always proposed by business] so that industry does not pay the full price for its conduct - if you listen to the business community, the free market should control everything, except penalties for the damage it causes - sort of like corporate bailouts for the consequences of their gambling.