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Alternative Dispute Resolution

Arbitration and Mediation in California: What’s The Difference in These Forms of Dispute Resolution?

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by Diana L. Martinez Collaborative Lawyer and Mediator, Law and Mediation Office of Diana L. Martinez

As a family law lawyer, I really look forward to my time on duty to volunteer at Riverside County Superior Court for VSC (Voluntary Settlement Conference) day. It is offered two Fridays per month and is THE most successful mediation program in the nation with an over 90 percent success rate!

Why? Because, in order to be a mediator on this panel, you must have the highest training and qualifications as both a family law lawyer and as a mediator. Not only do we donate our time, we must be in practice at least 10 years and have hundreds of hours of mediation training and practice under our belts. Other family law mediation programs that either do not have a structured program with high mediator qualifications, or that pay retired judges to do this work, enjoy a success rate below 60 percent.

Judges have an incredibly difficult job. It takes very specific skill sets to be a good judge. But being a talented judge does not, in and of itself, make you a good mediator.

I also volunteer as a fee arbitrator in attorney-client fee disputes for the California State Bar and for the San Bernardino County Bar Association. My role as an arbitrator is that of a judge: to listen to testimony, review the evidence, and make a ruling based on the law. There is no facilitation or brainstorming to help the parties create agreements together. As a result, the parties tend to stay polarized, hoping I will rule in their favor.

In contrast, a mediator works to find common ground, and assists the parties in bridging gaps, focusing on their goals and the reality of the benefits and risks of resolving versus litigation.

During a recent mediation in Riverside*, I had to use my skills as an arbitrator to attempt to resolve a divorce dispute in mediation. In this particular case, the husband was represented by counsel. The wife was not. The couple was married in the Netherlands and moved to California two years prior to the divorce. They had been married for 15 years. They had already agreed to the division of their assets and debts. The final item preventing them from resolving their divorce for nearly two years (yes, they had been divorcing for two years) was spousal support. The wife was not a legal U.S. resident and had struggled finding employment. During the marriage, she worked as a babysitter. The husband ran his own consulting business and was always the higher income earner.

As an arbitrator, looking at the evidence presented, the ruling is quite simple. Based on California law, Husband would be required to pay spousal support until one of the normal, terminating factors in a long term (over 10 years) marriage: 1) death of either party; 2) remarriage of wife; or 3) further order of the court. Wife, however, would have to make reasonable, good faith efforts to become self-supporting, in order to continue to receive support.

As a mediator, it is important to help both husband and wife craft an agreement that factors in wife’s financial needs and goals, as well as husband’s sense of unfairness of having to pay for so long a time. In this case, wife appreciated this and proposed that husband pay her only what she was short in rent each month ($200) for five years. This would give her time allowing her to get her legal resident papers in order and find a stable job, as she explained it, after which she would agree to “terminate” support.

Relying on a judge for a “fair” decision on your financial settlement during divorce is an expensive roll of the dice.

In a long-term marriage, courts do not, generally, terminate support; they may reduce it to zero dollars, but they will leave open the ability to request it in the future. This proposal, legally, put a lot of value on the table for the husband.   As a neutral, and especially given that wife was unrepresented, I did have to educate both parties about that legal value and the implications of a spousal support termination. To all knowledgeable in family law, this proposal was golden.

Husband’s attorney instructed him to reject the offer as completely unreasonable. His argument? In the Netherlands, his wife would not have received spousal support at all. Since the parties lived there for most of their marriage, wife should not be allowed to benefit from California spousal support laws. They argued the wife should agree to no more than six months of spousal support, which would then end. This sounded logical to husband.

Sadly, the husband’s “logic” is not the basis upon which family law judges issue orders. My inner arbitrator asked husband’s lawyer to explain the legal basis for this argument. It was a novel argument to me, and I’ve been in practice for nearly 20 years. His response: “Yes, it is a case of first impression, so I have to research this more.”

Excuse me? You have no legal basis for this argument, which means your client will be paying you for research that will very likely not result in the expected outcome. In addition to this expense, Husband’s lawyer planned on having a vocational evaluation done on wife to determine how much she could reasonably be earning. Really? She’s undocumented, and lawyer wants to do a vocational evaluation. Husband, as the sole income earning, would have to front this cost.

The court had already told the litigants prior to sending them off with their mediators that, if they do not resolve their matters, the next available court date would not be for another six months. This meant that husband will continue to pay his lawyer during that time, for research on an issue that has no support in law. If we calculate the legal fees at $1,750/month (lawyer rate of $350/hour, at five hours of legal work per month, including research on the foreign marriage issue, gathering information on wife’s earning ability, history of income during the marriage, and so forth), for six months, it will cost the husband $10,500 prior to his trial readiness conference. This is not the trial itself. It is a court hearing to confirm you are ready for trial.

The trial would likely be set within the following one or two months after that hearing, and trial preparation by his attorney would be far greater than five hours. But let’s keep it conservative for this discussion and add only another $1,750 to finish this case through trial. Now we have $11,750 in legal fees for the husband, in the hopes the judge will side with him and terminate spousal support, despite the law.

Let’s compare this with the wife’s proposal to resolve their case through mediation, six months before trial readiness. She proposed $200/month for five years = $12,000, and a signed, binding, agreement to terminate spousal support. That’s a guarantee, folks. Remember, by terminating, no court, in any state, would have the legal ability to order more support, ever!

Sadly, husband trusted his lawyer in the above mediation. The parties will end up going to trial, based on his lawyer adding to husband’s sense of unfairness, rather than educating his client as to the reality of the law. Logic would dictate that it would be better to take a sure bet for $250 more, than pay almost the same amount and risk the judge applying the law, as they are required to do.

In mediation, husband had the ability to cut his losses and be done. As a judge, there is no such flexibility. The judge or arbitrator (same function) is required to apply the law. But when emotion (that sense of unfairness) takes over, and a lawyer creates a false hope by feeding into that emotion, the only “winners” are the lawyers. There is no benefit to either spouse. There is no benefit to their families. The court battle continues.

If you expect a judge or arbitrator to “do the right thing” because he or she will see and understand the unfairness of it all, you will be disappointed. A judge does not have that kind of flexibility. They may find one argument more persuasive than another, but that means it follows the law more closely than the other. It does not factor in emotion or “fairness.”

In the above example, the law does not look at where you were married and apply the rules of a foreign country. If you lived in California six months prior to filing your petition for divorce, you fall under the laws of California – no exceptions based on “it’s not fair.” A judge must render decisions based on the law and the evidence properly presented. Don’t forget to factor in the financial and family relationship costs of the continued battle.

*I’ve changed certain facts of the case to protect confidential information, but have kept the substance the same.

John Denny takes Collaborative Practice leadership role

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Will serve as 2017-2018 Collaborative Practice California Board President Media contact: Gayle Lynn Falkenthal, APR, Fellow PRSA 619-997-2495 or gayle@falconvalleygroup.com
(Irvine, California) – Orange County family law attorney John Denny, member and past president of Collaborative Divorce Solutions of Orange County, was installed as president of Collaborative Practice California (CP Cal), the statewide organization for Collaborative Practice groups, at its annual conference in Redondo Beach, California on Sunday, April 30.

John Denny speaks to delegates at the 2017 Collaborative Practice California conference. Photo: David Kuroda
John Denny speaks to delegates at the 2017 Collaborative Practice California conference. Photo: David Kuroda

Individual members of the practice groups include Collaborative lawyers, mental health practitioners, financial specialists, and other professionals. The Collaborative Process is being used in family law, probate law, trusts and estates, and other civil law areas.

CP Cal’s mission is to unify, strengthen and support the Collaborative Practice community and to increase public awareness of the Collaborative Process throughout California.

“My goal during my tenure as Board President is to spread the word about the many benefits of Collaborative Practice in family law, civil matters, and trusts and estates,” said Denny. “Californians who must address legal or financial matters will benefit knowing about their Collaborative options for working through these critically important and sometimes contentious issues. They can resolve even the most difficult disputes while still preserving personal relationships with family members or business colleagues,” explained Denny.

John Denny graduated from UCLA (B.A., Economics, 1980) and Loyola Law School (J.D., cum laude, 1994). He was admitted to the California Bar (1994), U.S. District Court, Central District of California (1994), and the U.S. District Court, Northern District of California (1995). Denny is a Certified Specialist in Family Law by the State Bar of California Board of Legal Specialization.

Denny is a member of the Orange County Bar Association, State Bar of California, Collaborative Divorce Solutions of Orange County (CDSOC), and the International Association of Collaborative Professionals (IACP).

Denny co-authored “Ethical Issues Involving Minor’s Counsel,” published in OC Lawyer (2009), and “Some Benefits of Mediation and Collaborative Law,” OC Lawyer (2011). He served on the Board of Trustees of the Los Angeles County Bar Association and the Lawyers Club of Los Angeles County, including a term as President. Denny is a past President of CDSOC. He is a Founding Fellow of the Society of Fellows of the Orange County Bar Foundation.

John Denny is of counsel to Hittelman Strunk Law Group and limits his practice to Family Law Litigation, Mediation and Collaborative Law.

About Collaborative Divorce Solutions of Orange County

Collaborative Divorce Solutions of Orange County (CDSOC) was founded in 2003 to advise couples in Orange County about out of court options to traditional divorce litigation. Our group consists of experienced family law attorneys, licensed mental health professionals, and credentialed financial professionals, all of whom are specially trained in Collaborative Practice, mediation, and conflict resolution. Working under the Collaborative Practice model, the result is a divorce guided with respect and compassion in a non-adversarial way so families can make the best possible decisions about their future.

Why Is Divorce So Stressful?

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by Dr. Carol R. Hughes, Ph.D., LMFT

“There are few blows to the human spirit so great as the loss of someone near and dear.” ~ John Bowlby, M.D.

The Holmes-Rahe Stress Scale indicates that divorce is the second highest stressor for humans, second only to the death of a spouse.  Why is divorce so stressful?

When we view divorce through the lens of British psychologist, psychiatrist and psychoanalyst John Bowlby’s attachment theory, it helps us understand the reason why divorce is so stressful.  Attachment theory states that we humans have a biological predisposition to form attachment bonds (strong emotional ties) with significant others to have a secure haven and safe base where we can thrive and return for support and comfort during times of need, stress, and crisis.

Dr. Carol Hughes
Dr. Carol Hughes

We form these attachment bonds via our relationships with other human beings who are of primary importance to us.  Indeed, Dr. Dan Siegel, Professor of Psychiatry at UCLA Medical School, states, “Relationships are the most important part of our having well-being in being human.  It’s that simple.  And it’s that important.”

From birth to death, throughout the human life cycle, attachment bonds ensure our safety, security and even survival, and these emotional ties are strong and enduring.  It is understandable then that we humans tenaciously cling to our attachment bonds, both consciously and unconsciously.  Divorce disrupts and often destroys one of the most significant and powerful attachment bonds that we adults form – the bond with our marriage partner, thus also threatening the feelings of safety, security and survival this attachment bond has ensured.  As author Pat Conroy lamented, “The greatest fury comes from the wound where love once issued forth.”

The disruption and destruction of this powerful attachment marital bond become even more significant when we view each couple member’s psychological and physical health during and post divorce.  In the least case divorce causes the disruption and restructuring of the marital attachment bond and in the severest case, it causes the severing of the marital attachment bond, resulting in the attachment needs of the couple members no longer being met.  When this happens, the couple members have lost their secure haven and safe base where they can thrive and return for support and comfort during times of need, stress, and crisis.  They become more distressed and thus vulnerable to both physical and psychological stress, while at the same time being less able to deal with the stress and distress.

Researchers have consistently found that, except when compared to those in the most unhappy marriages, separated and divorced individuals suffer higher rates of physical and mental health concerns than married people in general, and often higher rates than widowed individuals.  In contrast, researchers have found that those in the unhappiest marriages often feel a sense of relief and hopefulness that their future can be happier apart from their spouse.

“Divorce is deceptive.  Legally it is a single event, but psychologically it is a chain – sometimes a never-ending chain – of events, relocations and radically shifting relationships strung through time, a process that forever changes the lives of the people involved.” – Judith Wallerstein and Sandra Blakeslee, Second Chances

The impact of divorce reaches far beyond the disruption, restructuring, and rupture of the marital attachment bond.  Divorce affects relationships in every aspect of the couple’s lives – the relationships with their children, both minor and adult, with extended family members, friend and community support systems, both in the present time and into the future.  As the author Pat Conroy wrote, “Divorce has many witnesses, many victims… Each divorce is the death of a small civilization.”

We know that grief is part of dealing with the excruciating loss that overwhelms us in death’s wake.  Grief is our response to this loss.  Divorce is the death of a marriage, the death of a couple or a family living together in one residence, often the death of extended family, friend, and community gatherings, the death of hopes, plans and dreams for the future.  Grief is the invisible companion of divorce.  Whether we are the one who is leaving the marriage, or the one being left, grief will be accompanying us on the journey called divorce.

Grief will also be the travel companion of our children, both minor and adult, our extended family members, and our friend and community support systems.  This grief is inevitable.  To many it is also invisible because most of us experiencing divorce, whether it is our divorce or the divorce of our parents, do not think of what we are experiencing as grief.  We most often say that we are feeling shocked, angry, sad and powerless, all of which are feelings that arise during grief.

During separation and divorce, both members of the couple are experiencing significant losses.  Yet both are often unaware of their invisible companion called grief.

It is common that the one leaving the marriage has already endured months and even years of agony, assessing whether to leave or stay.  For the one leaving, the divorce grief process began many months ago as he or she began thinking about less contact with the children, extended family, friends and community, the loss of and even longing for the happier days of the marriage, the possible loss of the family home and financial security, and the loss of hopes, plans, and dreams.  So, the one leaving has a head start in the grief cycle of divorce.

When the one leaving says, “I want a divorce,” the one being left is immediately catapulted into the grief cycle of divorce.  Often the one being left swings topsy-turvy through feelings of shock, deep hurt, intense sadness, anger, even rage, love and longing for the spouse and grieving the same losses as the one who is leaving the marriage.  All of these feelings are part of the grief cycle of divorce.

“Some people think that it’s holding on that makes one strong; sometimes it’s letting go.” ~ Author unknown

Researchers have also found that even when adults have experienced such losses, physical and psychological disturbances, and grief, after a period of time most adults cope successfully with divorce.

How can you best ensure that you are one of the adults who successfully cope with divorce?

Acknowledge that you are experiencing an overwhelmingly stressful life event.  Assess where you are in the divorce grief cycle.  Ask for professional assistance.  Work with a team of divorce professionals who are experienced in Collaborative Divorce and Mediation and who understand your needs as you move through this major life crisis.  These divorce options are confidential, out-of-court, non-adversarial and respectful.  They offer you the opportunity to identify your goals, interests and concerns and craft agreements that are both individual and family focused.

Why a Collaborative Pre-nup Makes Cents

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by Suanne I. Honey Attorney at Law, CFLS, Mediator and Collaborative Attorney

Sorry for the silly pun when this is such a serious topic. Seriously, though, pre-nuptial agreements are hot topics which give rise to many emotions.

“It paints the Devil on the wall.”

“It is anticipating failure of the marriage.”

“If he or she really loved me, this would not be necessary.”

“I am uncomfortable talking about finances.”

The list can go on and on. Sometimes emotions are an unnecessary waste of energy. Other times emotions have some benefits, even negative emotions. For example, fear in a dark alley in a dangerous neighborhood will cause you to be zealously vigilant about your surroundings which will lead you into taking appropriate steps for your safety … much like the pre-nuptial agreement itself.

Unfortunately, statistics today are not favorable for a lasting marriage. If and when there is a decision to get divorced, the person you once loved turns into the enemy. There is often a total lack of trust at the time of a divorce. There are fights over money, property, and other issues creating stress for both partners. This stress almost always filters down to the children.

Collaborative Law is a process where couples work with a team of expert professionals.

The mental-health professionals work individually with each partner to a marriage (or a potential marriage). They help curb their emotions and phrase their individual needs and wants in a positive, cooperative and logical way, allowing those needs and wants to really be heard and understood by the other partner.

The financial professional will be able to identify and sort out the financial and property issues of concern to the couple in a transparent and logical way.

The Collborative Practice attorneys will help guide their clients through the legal quagmire. This can all be done in a much less stressful, more cooperative way in the collaborative arena.

While important, none of that is the real reason that Collaborative pre-nups make the most “cents.”

The biggest reason for marriages to fail is the breakdown in communication. Having gone through a divorce in the Collaborative law process, many (if not most) participants say if they’d gone through this process before the marriage, the divorce would be much less likely.

So it makes “cents” to have your pre-nuptial agreement created in the Collaborative setting. Because of the communication skills learned by the couple during the process, it may help avoid a future divorce altogether. This saves a great deal of “cents” paid to attorneys and litigation, or future Collaborative Divorce costs.

Even if the unthinkable happens and there is a future divorce, you will come out ahead. Having learned how to conduct difficult conversations in a way that allows your spouse to hear and understand your position, even discussing issues in the divorce process that were not part of the original prenup will save many “cents.”

Most importantly, the stress level exposed to any children during your divorce will be significantly reduced. This is an outcome which is “priceless.”

Learn Your Divorce Options at Spring Workshops

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Informative seminars help you learn about the different divorce processes

If you are struggling to find answers for your difficult questions about divorce, attend one of the Spring Divorce Options workshops offered by Collaborative Divorce Solutions of Orange County.

The workshops take place at Orange Coast College, 2701 Fairview Road, Costa Mesa, California. The final date for spring 2017 is:

  • Thursday, April 20, 6 – 9 p.m.

Register online at the Orange Coast College website here (enter “Divorce Options” in the search box), or by phone at 714-432-5880, extension 1 (Monday – Friday, 8:30 a.m. to 4:30 p.m. only). For additional details, visit our Divorce Options page here. The seminar cost is $55 per person and includes all materials.

Our goal is helping people in a diverse range of situations. Divorce is difficult and stressful even under the best of circumstances. It can be especially hard if you have children or economic difficulties. Divorce affects people from all walks of life, and no two situations are alike.

We know from experience it IS possible despite challenges to preserve the emotional and financial resources of the family while respecting everyone’s needs during a divorce.

Led by volunteer attorneys, financial specialists, and mental health professionals who are members of Collaborative Divorce Solutions of Orange County, the workshop will cover the full range of choices couples have as they contemplate divorce, focusing on the non-adversarial, out-of-court options.

Getting answers to your tough questions at the next Divorce Options workshop will help you weather the storm.
Getting answers to your tough questions at the next Divorce Options workshop will help you weather the storm.

Divorce Options provides unbiased information about self-representation, mediation, collaborative divorce, and litigated divorce. The workshop deals with the legal, financial, family and personal issues of divorce in an informational and compassionate small group setting.

The Divorce Options program welcomes anyone thinking about divorce or other relationship transitions including co-habitating couples with children or LGBT couples looking for a process aware and respectful of their unique needs. Divorce Options offers useful information adaptable to a wide variety of family circumstances.

Topics include:

  • Litigation, mediation and collaboration – the risks and the benefits of each process
  • Legal, financial, psychological and social issues of divorce
  • How to talk about divorce with your children
  • Guidance from divorce experts

By learning about divorce and the different process options available you can maximize your ability to make good decisions during the difficult and challenging time. Divorce Options is a workshop designed to help couples take the next step, no matter where they are in the process. It identifies strategies to help you stay out of court, and helps you identify the social, emotional, legal, and financial issues that are most pressing for you.

Presented as a community service by the members of Collaborative Divorce Solutions of Orange County.

 

Resolve to Improve Your Practice in 2017: Attend CDEI Three-Day Interdisciplinary Team Training – Fundamentals and Beyond

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Resolve to improve your professional practice in 2017 by attending the Collaborative Divorce Solutions of Orange County in cooperation with Collaborative Divorce Education Institute’s (CDEI) Interdisciplinary Team Training January 26-28, 2017 at National University in Costa Mesa, California.

As an intermediate or senior legal, financial, or mental health practitioner, which of the following are true at this stage of your career?

•    You are tired of the grind of litigation in divorce and civil litigation
•    You are tired of toxic personality clients only interested in going to war
•    You are tired of being the “middle man/woman” and the client’s only resource
•    You want to shift your practice orientation from litigation to collaboration, mediation or other out of court resolution processes
•    You want to spend more time working with motivated, quality clients
•    You want to dramatically reduce your receivables and your professional stress
•    You want to help your client put their personal, financial, and social goals at the forefront of their settlement process
•    You want to improve your listening, coaching, and assessment skills
•    You want to learn new ways to communicate with your clients and other professionals in a way that you can be heard and understood
•    You want to experience clients who value the outcomes of their settlement process choices
•    You want to focus on the end goals, manage emotions, and create independence
•    You want to teach clients problem-solving and coping skills
•    You want to preserve family relationships and lessen stressors
•    You want to renew your enthusiasm for your practice and your career

The Collaborative Divorce Solutions of Orange County (CDSOC) in cooperation with Collaborative Divorce Education Institute’s (CDEI) Three Day Collaborative Interdisciplinary Team Training will provide intermediate to advanced training which will meet or exceed minimum membership requirements of most local collaborative law practice groups. It is also beneficial for practitioners who want to develop more skills and a new understanding of how to support, lead your client, and extend your professional skill toolbox by developing a deeper understanding of informed consent, providing you with best practice forms, and equipping you with the next generation thinking of how to lead clients to agreement readiness.

Whether or not you are interested in becoming a Collaborative Professional, this Three-Day Training will strengthen your skills in Alternative Dispute Resolution, which can help you even in a litigated divorce or civil matter to de-escalate conflict and offer new ways to approach negotiation and compromise.

Don’t miss out.  Seating is limited. For more information and to register, visit https://www.cdei.info/3daytraining.html

Collaborative Divorce Solutions of Orange County certifies this activity has been approved for MCLE credit by the State Bar of California in the amount of 19 hours.

We are awaiting approval from the California Association of Marriage and Family Therapists for 19 CEU hours. We also anticipate CEUs will be available for Certified Divorce Financial Analysts. 

Tracy McKenney named President of Collaborative Divorce Solutions of Orange County

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New board named to serve 2016-2017 term August 4, 2016  Contact: Gayle Lynn Falkenthal, APR
619-997-2495 or gayle@falconvalleygroup.com

(Irvine, California) – Tracy McKenney, CDFA, CFP, has been named President of Collaborative Divorce Solutions of Orange County for the 2016-2017 term. McKenney is a Certified Financial Planner and Certified Divorce Financial Analyst in private practice based in Irvine, California.

Joining McKenney on the 2016-2017 Board of Directors are:

  • President-Elect: Therese Fey
  • Vice President: Patrice Courteau
  • Secretary: Diana L. Martinez
  • Treasurer: Leslee Newman
  • Advertising and Marketing Chair: Yaffa Balsam
  • Membership Chair: Marvin L. Chapman
  • Training and Education Chair: Suanne Honey
  • Speakers Bureau Co-Chairs: Carol Hughes and Bruce Fredenburg
  • Website Chair: Sara E. Milburn
  • Member at Large: Jann Glasser

“It is important to me to be involved in an organization like Collaborative Divorce Solutions of Orange County. Collaborative Divorce represents a significant advancement in resolving divorce respectfully,” said McKenney. “Going through a divorce is in some ways harder than dealing with the death of a loved one. It worsens when the process is dragged out through contentious, time-consuming and costly litigation in court. In so many cases, couples can avoid the damage of a court battle, even when they aren’t sure they can cooperate. Our approach makes it possible.

“Collaborative Divorce keeps decision-making in the hands of the couple. It spares them and especially their children the duress from an acrimonious divorce, preventing lasting harm, and preserving the family relationships for a healthier future,” said McKenney. “In most cases, it is less expensive than a litigated divorce.”

“Our goal for the coming year is to make more couples in Orange County aware of Collaborative Divorce,” said McKenney.

About Collaborative Divorce Solutions of Orange County

Collaborative Divorce Solutions of Orange County (CDSOC) was founded in 2003 to advise couples in Orange County about out of court options to traditional divorce litigation. Our group consists of experienced family law attorneys, licensed mental health professionals, and credentialed financial professionals, all of whom are specially trained in Collaborative Practice, mediation, and conflict resolution. Working under the Collaborative Practice model, the result is a divorce guided with respect and compassion in a non-adversarial way so families can make the best possible decisions about their future.

CDSOC is online at https://cdsoc.com/, and Facebook.

The Cost of Divorce To Your Business

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by Diana L. Martinez Collaborative Lawyer and Mediator, Law and Mediation Office of Diana L. Martinez

Divorce takes an emotional, physical, and financial toll on spouses and their children. But the potential negative effects of divorce don’t stop with the family directly involved. They often spill out past the front door and affect many other people.

When a valued employee is going through the trauma of a divorce, the divorce can affect the entire workplace. The cost to employers can go well beyond absenteeism for a few days here and there to attend court hearings or meetings with the lawyers. Trying to accommodate the employer and the divorce process can prove challenging.

Courthouses are open only between 8:30 a.m. and 4:30 p.m. Most lawyers’ offices are only open between 9 a.m. and 5 p.m. While some lawyers can be more flexible, most judges and courts cannot. The higher the conflict in the divorce, the more court appearances and the more time spent with the lawyers and in court.

Additionally, less obvious costs include:

  • “Presenteeism”: The employee who is physically present at work, but unable to focus as a result of the divorce.
  • Employees wasting valuable work time talking with co-workers about their divorce.
  • An employee leaving work early due to anxiety attacks or illness related to stress.
  • Childcare difficulties when the employee can no longer depend on his/her spouse to cover such tasks.

A depressed or distracted employee can end up with impaired judgment which negatively impacts his or her overall job performance. It can lead to safety concerns, injuries, mistakes, and accidents.

In one example, a company’s manager was served with divorce papers two days before the company was to submit a binding bid on a three-year contract for the company’s products through a county bidding process. The employee did his best to balance work with the depression, anger, and fears he experienced due to limited time with his children and concerns about spousal support and child support. The manager submitted the binding bid with an error committed by the distracted employee in the bid. When the company’s bid was opened, it was the lowest bid by approximately 25 percent. The county accepted the bid and the company was forced to abide by it, losing hundreds of thousands of dollars for those three years.

Employers value their loyal and dedicated employees who produce high quality work year after year. But imagine the same kind of employee suddenly hemorrhaging money in legal fees, expert fees, and custody evaluations; or when the same employee is on medication for depression, or is receiving harassing phone calls or disruptions at work from an irate soon-to-be ex-spouse. Even the most understanding and patient employer is ill equipped to provide the safety or emotional support the employee really needs.

Unfortunately, in a worst-case scenario, this can cost the employer a truly valuable employee. It can cost the employee his or her job at the worst possible time, adding to his or her financial hardship and stress.

These same challenges often continue one, two or even five years after the divorce is completed. The higher the conflict during the divorce, the longer the recovery will take. The more time spouses spend in contested court battles during their divorce, the more likely they will continue to battle over modifications to orders after the final judgment is entered.

Many couples facing divorce have found an alternative to the high stress and high cost of a litigated divorce. Spouses who co-create their agreements through an out-of-court process such as mediation or Collaborative Divorce spend less time in court when compared to a litigate divorce, and experience far less stress. Often, they are able to work with a divorce coach, a trained mental health professional, who can help manage the anger, sadness, or frustration they experience.

Children also tend to recover faster when their parents are able to communicate well and act as a team in support of their children. This also adds up to fewer lost workdays because of stress, anxiety, child illness, or childcare challenges after the final divorce decree.

Human resource professionals are starting to recognize the advantages of Alternate Dispute Resolution for all civil matters faced by their employees, including divorce, and often recommend employees consider these methods for divorce and other legal issues.

As an employer, consider these options to help your valued employees navigate the difficult process of divorce:

  • Be sure your human resources personnel know about out-of-court divorce options. Are they versed in conflict resolution skills? Understanding the emotional and financial trauma is the first step in assisting a valuable employee through the divorce transition. Having the skills to acknowledge the hardship and refocus the employee so they are fully present during work hours requires training and education.
  • Mediation and Collaborative Practice groups offer general conflict resolution training. The skills taught in such programs are transferable to family conflicts, as well as interoffice conflicts, which can arise during the divorce process.
  • Many employers recognize the benefits of offering needed support for employees experiencing trauma through Employee Assistance Programs (EAP). EAPs often include referrals to mental health professionals and divorce lawyers. Does your EAP provider have knowledge about out-of-court divorce options? Can it provide a referral to a Collaborative Divorce practice group or family law mediators?
  • Collaborative Divorce, like mediation, is an out-of-court, solutions–focused process for completing a divorce. Because it is an out-of-court process, an employee can meet with their professionals outside of work hours including evenings and weekends.
  • The Collaborative Process is especially useful in high-conflict or more complex divorces typically taking two to three years to resolve through the court system. Most Collaborative Divorces are resolved within 12 months, and can cost far less than a comparable litigated courtroom case.
  • Divorce Options Workshops: These workshops are held in the evenings and weekends. A family law lawyer, divorce financial professional and a divorce coach present information about the divorce process, and answer general questions. Taking the mystery out of the divorce process itself reduces the anxiety and stress typically associated with an impending divorce. Some programs are offered at no cost while others charge a nominal fee.
  • Provide online resources such as:
    • International Association of Collaborative Professionals
    • Collaborative Practice California
    • Collaborative Divorce Solutions of Orange County
    • Southern California Mediation Association

We all experience conflict in various aspects of our lives. The conflict can either escalate to the point of losing an employee, spouse, or friend, or it can strengthen those same relationships. It can mean the difference between a productive employee and happy customers or a company with a high employee turnover and a reputation for rude staff. Companies that support their employees during personal challenges like divorce will reap the benefits in terms of their bottom-line and their reputation.