In this video, family lawyer Patricia Van Haren discusses settling your case through mediation or collaborative divorce.
Hosted By: Cathy Meyer
Guest Speaker: Patricia Van Haren, Family Lawyer
Read the Transcript of this Video Below.
Cathy Meyer: Hi, my name is Cathy Meyer. I am the managing editor of divorcedmoms.com and editor of divorcemag.com. Today I have the pleasure of speaking to family lawyer Patricia Van Haren on the topic of settling your case through mediation or collaborative divorce. Patricia Van Haren is an experienced family law attorney and author of the book “How to File and Survive A Divorce in California.” Her law firm serves all areas of Greater Los Angeles in Orange County, Southern California, with offices in Irvine and Torrance. Her goal is to educate and inform clients, and a lot of our viewers would like to find out more about their options, aside from going to court over their divorce or disputes after their divorce. Thank you, Patricia, for being here.
Patricia Van Haren: Cathy, thank you so much for asking me to be here today.
This is an interesting topic. Back when I went through divorce, mediation wasn’t as relevant or as popular as it is today – just about everybody who goes through divorce has to do mediation. I can remember being put off by it, and the thought of sitting in the same room. I just didn’t have a lot of trust in it. We have a lot of viewers that feel the same way I did when I first went through it, so I’m glad you’re here to clear that up. I’ve got some questions. Let’s dive in.
What alternatives are there to settling divorce or family law disputes without going to court?
Today, there are so many options to avoid court. Especially in recent times, people are not wanting to spend time waiting for court dates. It’s very hard to get an appearance date. It just adds a lot of time and an expense to the divorce process. We have several different options now. One is mediation – that’s what you were talking about where both parties are in the same room.
There’s also an option called collaborative divorce. Collaborative divorce is interesting because we have a team approach to divorce, so both parties will have their attorneys, and we’ll have other professionals that we work with to help to settle cases.
We also use a hybrid of divorce litigation and collaboration which we call divorce negotiation. A lot of times we’ll make an informed decision with the other attorney that we’re going to do everything in our efforts to settle this case and keep it outside of court.
It all sounds confusing to me, but definitely a better option than litigation.
Okay, question number two: what is mediation and how does that work? Is it mandatory in all cases?
Mediation is where two parties will work with a neutral person, usually an attorney. With mediation, neither party is represented by the mediator. They may both have their own attorneys that they consult with during the process. Oftentimes, we will serve as a mediator, and other times we will serve as a consultant to parties that are in mediation. In this, it’s a setting where we’re sitting down with the neutral party, having free-flowing discussions, and trying to come up with mutual agreements.
Mediation is not required in all cases unless there is a child custody dispute. If you want to have a hearing with a child custody dispute, you must go through some form of mediation – either with the court or private mediator before the judge will even hear your case. That’s because the courts find that parents make the best decisions for their children and will readily accept a parenting plan agreed to by the parties.
If you’re in a custody dispute like that, does having mediation shorten the length of time or extend the length of time?
When you set a hearing date for child custody, you will automatically be given a mediation date with the court mediator. If you try to work things out in mediation before you even get that hearing date, a lot of times it will reduce many issues in the divorce case. You can come up with agreements and possibly not even need to see a judge about your custody case. I would say generally, it’s saving time.
Okay, good. Question number three: if a spouse is not financially sophisticated, will they face disadvantages to a power imbalance?
That could happen in mediation, a lot less so in collaborative divorce (because each party is represented). What we do advise is this – if we have one spouse that has more control over the assets, it’s really important to have the other spouse have an attorney to consult with, to guide them, to look at documents that are prepared, to look at the financial statements that are prepared, and to help get them in touch with the right professionals. Sometimes when we’re consulting, we’ll bring in a financial planner or a CPA or a forensic accountant to help advise the client about their spouse’s assets.
Understood, another question, what are the pros and cons of mediation?
The pros are: it is a quicker alternative to litigation, it generally saves money, and you are coming up with the agreements in your divorce working directly with your spouse.
The cons are: if things don’t work out in mediation, the mediator cannot represent either party in the divorce case. If there’s a power imbalance like we discussed before, this may be a case that’s a lot more appropriate for collaborative divorce rather than mediation, that way you’re still not in court. In cases of domestic violence, I rarely, rarely will advise for mediation, usually, we’ve had years of a power imbalance going on there, so it’s just not a safe environment.
Which is more financially feasible, mediation or collaborative divorce?
Both alternatives are going to be less than divorce litigation. Mediation is going to be a less expensive alternative because you are going to have the one attorney or one neutral negotiating for you. You may pay some different consulting fees, but for couples that don’t have a significant amount of assets, who are almost in agreement about custody and just need somebody to bridge that gap, mediation is going to be a more affordable process.
Yes, that makes sense. What is collaborative divorce and how does that work?
Collaborative divorce is a team approach to a divorce process. With a collaborative divorce, you may have a therapist or a divorce coach that helps you out with some of the custody portions of the divorce. Each spouse generally has their own attorney representing them. If one of the parties has a business, we may have a forensic accountant or a financial planner involved in this process. If the parties own property, we may be consulting with a mortgage specialist or a real estate agent if they’re thinking about selling or buying out one of the spouses. We work together as a team to help bridge the gap. People will say “oh my gosh, that sounds so expensive, all these different people are involved” but it actually really saves them money because the appropriate people are handling the issues.
The attorneys are really focused on the legal issues and presenting the legal arguments, whereas the parenting coach can help parties get through the emotional issues. A lot of times, custody isn’t about one parent being the bad parent – it’s about the parents not wanting to spend time away from the children. Helping them work through that fear can often bridge the gap in many custody issues. Having somebody advise them on the finances outside of the legal realm, helps them know they’re okay. Collaborative divorce is definitely less costly than litigation because all of your attorney’s time is really focused on finding solutions rather than sitting around, waiting for the case to be called in court, going back and forth with emails and letters that are really counterproductive to settlement. It’s a solution based way to end the marriage.
As an attorney, what is your personal preference: mediation, collaborative divorce, or litigation?
I really believe that the preference is factually based. No case is going to be the same. There are some cases where mediation is the appropriate solution. Whenever we’re signing up a client or speaking with a client initially, we do a very thorough strategy session so we can explain all the options for divorce to make sure that we know the right solution for that family. Collaborative divorce is going to be more appropriate in a case where there may be some distress. A lot of times, we have couples where maybe one of the spouses has had an affair or maybe one of the spouses was the higher earner (and the other spouse really didn’t know a lot about the finances until now that they’re getting divorced), so they don’t trust each other. Collaboration can really bridge the gap with that distrust because each party is represented and has their own counsel.
Unfortunately, it takes two reasonable people to settle any type of a divorce case. If we have one spouse that’s not reasonable, we’re going to be forced into litigation. We can help our clients decide which battles to pick and which things to litigate, and what matters can possibly be resolved outside of that – but it really takes two people to settle a case but unfortunately, only one person to litigate.
When would you not recommend mediation or collaborative divorce? When would you recommend litigation?
In cases where there is significant drug and alcohol use by one of the spouses, that may not be an appropriate case for collaborative divorce. Cases where there’s extensive abuse, particularly physical abuse or emotional abuse, where we’re required to file a restraining order on behalf of our client, those are cases that just may not be appropriate for collaboration and litigation. It may not be safe to have both parties in the same room. We can work to settle certain issues outside of court once we get that domestic violence restraining order in place.
It would be more of a situation where the attorneys are really negotiating with each other outside of court on other issues, perhaps in the case of property distribution. If we’ve got spouse hiding assets and transferring assets to the name of other parties, that’s not going to be an appropriate case for either collaboration or mediation – we’re going to have to send out subpoenas and possibly freeze accounts, where we see that the other spouse is not really acting in good faith.
When you have a complex financial issue, which avenue do you think works better for a client?
If we have complex financial issues and the parties still have good and open communication, collaborative divorce is a great process for them. Let’s say there’s a business involved, we can have a joint forensic accountant to determine the cash flow of the parties and help us come up with an agreement as to child support and spousal support. They can help us determine the value of a business so that we can have some sort of equalization. They can assist us with determining cash flow from various rental properties. Working with a team of professionals is highly appropriate if the parties get along well, and want to stay out of court if it’s a very complex financial case – that would be a situation where I would definitely recommend collaborative divorce. Again, if the spouse is untrustworthy with the assets (like they’re hiding assets) then we would need to go the litigation route in a case like that.
Is there any advantage to the client and using a family law attorney as the mediator?
Absolutely, a family law attorney is going to be knowledgeable as to the rules in court. Usually, they’ve spent time in front of the judges so they can tell you various parenting plan options that they’ve seen presented with them. They’re going to understand how to prepare the paperwork, make sure the paperwork is prepared correctly, and make sure that they are enforceable orders. Making sure that you have a family law attorney, somebody that’s knowledgeable with the family code and the rules of court (both the local rules and the state rules) is going to be really beneficial to both the clients involved.
Wonderful. I really appreciate you being you with us and clarifying the differences for those who needed it. I’d like for you to go a little bit into this new book that you’ve published.
I have published a book. It is available on Amazon, it’s called: How to File and Survive a Divorce in California. In it, I explain all the different options for divorce. I talk about some do’s and don’ts in the divorce process, so it’s meant to be a tool filled with information. I didn’t write it in a legal format; I wanted to make sure it was understandable to people that are going through a divorce or might be thinking about a divorce. It’s how to get through the process – what does the divorce look like in California? What can I expect may happen in my divorce?
That’s very important information to have. I always tell people one of the most important things you can have during the divorce process is knowledge of how your state handles divorce.
I really appreciate you being here. It has been fun. Thank you.
Thank you so much for having me join you today.
For our viewers who are interested in learning more about how Patricia can help you with your divorce and family law issues, please visit her website at pcvlawyer.com. You will find a lot of useful information on Patricia’s website about divorce in California.