Friday, June 18, 2010
Kitchen Table. In some cases, spouses can sit down together and work out agreements on all major issues on their own. Those cases involve relatively mature and intelligent people who are beyond the anger stage of the divorce process. It can be a great way to resolve issues while maintaining family relationships.
Mediation. In California and some other states, it is fairly common for the parties to go to a mediator without using attorneys and work out an agreement. In Texas, that rarely happens, but we use mediation in virtually all non-Collaborative divorces. It usually takes place after some court hearings and the completion of discovery (the exchange of information). Each party attends with an attorney and it is a very effective process in most cases.
Collaborative Law. When both parties want to try this, it can be an excellent method of reaching agreements. The parties agree to not go to court and work toward an agreement by having a series of face-to-face meetings with the parties, attorneys and other professionals. See my other blog for more information.
Arbitration. Although this is not very common in Texas, it can be a means to avoid the delays of the court system. A hired arbitrator hears testimony, reviews evidence and rules on contested issues. It can be expensive, but it is relatively quicker than a litigated divorce and might be cheaper.
Litigation. This is the most commonly used process in Texas. One side files for a divorce and usually serves papers on the other party. A temporary hearing is usually held to set up orders for while the divorce is pending. It usually takes about a year to get a contested divorce in Tarrant County. It often is resolved through mediation, but that most often occurs late in the process.
If you need to resolve a family law issue, you should think about and research the above approaches and then talk with a lawyer to get advice for your specific situation.
Thursday, June 10, 2010
The Jacksonville Divorce Lawyer Blog recently asked this question in the context of a Florida divorce. Their answer was the same as ours: legally, you aren't required to have an attorney for mediation, but you really should have one with you. As they pointed out, there are several important functions an attorney will carry out for you. Here are some of their ideas, with some of mine, for what an attorney brings to mediation:
Give you an overview of the process. There are different ways to conduct a mediation and a Tarrant County divorce lawyer can tell you how mediation is normally practiced here. The process may be followed a little differently in other areas of the state.
Help you select an appropriate mediator. Just like everyone else, mediators bring different experience, knowledge and personalities to the process. To put it another way, "one size doesn't fit all". It helps to have an experienced attorney who knows the mediators in Tarrant County who can help you choose the best mediator for your case. That decision alone can have a dramatic effect on your case.
Help you create and understand your options. Part of the mediation process is developing and evaluating options for settlement. An experienced family lawyer can help you create and select appropriate solutions.
Be a legal advisor. One of the primary roles of your attorney is to explain the law to you and answer any questions you have about how the law applies to your case.
Help you evaluate the offers on the table. Your attorney will ultimately have to give you advice, based on the attorney's knowledge and experience, about the advantages and disadvantages of any offers of settlement that you make or receive. The decision on whether to make or accept an offer always belongs to the client, but it's a good idea to consider the advice of your attorney. Lawyers typically look for what can go wrong with a deal, and that's a good thing to listen to when you may be anxious to settle.
Thus, while you can technically go to mediation without an attorney, you are better off having an experienced Tarrant County attorney to help you prepare and then to go through the process with you.
Tuesday, June 1, 2010
One of the factors that is often overlooked is how decision-making is shared between attorney and client. Just as in other facets of the attorney-client relationship, there are a variety of approaches. Here are some common ones, from my observation.
Paternal/Controlling/Directing -- Strong, experienced attorney who makes the decisions and then tells the client what to do. These attorneys often feel that it is their "duty" to tell clients what to do, even if the client wants something very different. This is a fairly common approach. The attorney doesn't need to consult with the client to find out what the client wants to do or not do. What often happens, if the attorney finds out the client's feelings, is that the client's wishes are often overruled by the attorney. Sometimes that creates friction between attorney and client. Other times a client feels well protected and cared for. Either way, the result is often a more protracted court case and higher attorney's fees.
Avenging Angel -- Defender of a client perceived by the attorney to be weak and unable to defend her/himself. This is usually a "light" version of the Controlling attorney. Here, the attorney guides and directs the client, but is willing to jump in and make decisions for the client who the attorney believes is incapable or ineffective in looking out for the client's own best interests.
Mouthpiece -- Speaks for the client using the client's words; little input from the attorney. Whatever the client wants, the attorney will advocate it, even if the attorney knows or should know that the action will be counterproductive. This attorney sees him/herself as standing in the client's shoes, doing what the client wants to do, but doing it better -- following the proper legal channels.
Partnership -- Fairly equal participation. This attorney becomes an ally and often is not very objective. The attorney will listen to the client and discuss what the client wants and needs. They will often talk strategy and the attorney explains things to the client, allowing the client to have some input in decision-making.
Goal-focused Facilitator -- Tries to work at a higher level, focusing on what's truly important to the client; gives pros and cons and lets the client make the decision. This attorney works to create an informed and empowered client.
Some attorneys are aware of what type of attorney personality they have, but many are not. Those who are unaware simply believe, based on what they were taught or observed, that their style is the only way (or best way) to practice law.
Some attorneys will switch from one style to another, depending on the circumstances and the personality of their clients.
What should you do about this? Before you meet with an attorney, try to find former clients and others who know the attorney whom you can talk with. When you are interviewing an attorney to hire for a case, ask questions about how the attorney views his/her relationship with the client and listen carefully to how the attorney describes his/her actions in prior cases. What you are looking for is someone you are comfortable with. There's no single right answer for everyone. It's usually best to follow your gut instinct as you decide whether the chemistry is right when choosing your lawyer.