Litigate or Collaborate?

Family in Crisis

LITIGATION VS. COLLABORATIVE PROCESS

Do Different Elections Lead to Different Outcomes?

Facts of the Divorce

                John was upset.  He worked way to many hours and had nothing to show for it.  Mary worked 30 hours a week and was primarily taking care of the children.  When John got the mail he saw the balance on their credit card.  That was the last straw for John.  He wanted to get divorced at that moment.

                “I can’t believe Mary.  Mom was right.  I married the wrong woman.  I need to get divorced.”  John really wanted a divorce.  He was starting to hang out at work with Jacki Sparks, a fellow employee at work.

Choosing Litigation

John hires and attorney and runs to the courthouse.  John wants to be heard by the judge at the courthouse.   John is angry and his lawyer tells him that he has a good shot “winning his case” and getting custody of the kids and getting :

Mary is unfit.  She’s not a good mom.  She spends her time charging and charging expenses on our card.   I am a good person judge and I don’t deserve this kind of treatment.  I think that I am the best parent to take care of these kids!  I can work 80 hours and be their primary parent.  NO problem.

The Judge listens to the parents and asks John “What is your plan to take care of the children?  If you are going to be working 80 hours, I don’t know how I’m awarding you the right to establish the primary residence of the children.   I’m ordering that John pays child support, is given standard access to the children. Since this is a custody case I’m ordering a social study and I’m ordering you both to mediation prior to trial.

John tries to talk to Mary who walks away from him, saying  “Unfit?  Not a good mom. You’re a joke John.”   The next few months are filled with John and Mary screaming at each other in front of the children.    The parties meet at mediation and John concedes custody, unable to continue to pay the high cost of his attorney.

 

“STOP AND THINK”

Choosing Mediation (OR other Collaborative Models)

PRIOR TO LITIGATION

John and Mary decide to go to mediation with their attorneys.  The mediator places both parents in separate rooms FAR APART from Mary and starts talking to John.

John:   “I can’t stand Mary.  She’s not a good parent and I want custody and I want what’s mind.”

The mediator looks at John, pauses and says,

Mediator:  “John what do you mean?”

John:    “Just look at this credit card bill.  She can’t manage finances and she’s wrecking my credit.  I can’t get out from under my debt.  She’s ruining my life!”

Mediator:  Lets look at the bills.  Lets look at the past 12 months and see what’s going on.

Mediator:  Well I looked at the bills and help me out here

John:  Why are you taking sides?  Can’t you see that Mary is the worst parent on the planet.  I want my kids and I want my stuff.

John’s attorney:  John, the mediator isn’t taking sides, he’s doing his job.  You agreed to mediate this matter.  The mediator just wants you to focus on what’s important.

Mediator:  John, Telling Mary she’s a bad parent PROBABLY isn’t going to make her want to reach an agreement today.  Just for today, lets focus on the issues what we have.

John:   Ok well I’m looking at the bills, what’s this charge to Walmart for $3000.00.

The mediator leaves, John is angry and bitter.

Mediator meets with Mary.  After a long discussion, Mary says:

Mary:   That $3,000.00 was to buy his kids a smart tv for Christmas.  This whole charge thing is an excuse to leave our marriage.  I know something’s wrong.  John’s been acting weird and blocking me from his phone.  I think he’s having an affair.

Mediator goes back to John:   John the $3,000.00 you are complaining about was to buy the kids a tv.  I looked at the charges and I don’t understand your position.

John:  (Acting nervously) Well I really want out of the marriage, I met someone else.

Mediation continues and John stops talking about Mary being a bad parent, focusing on how to deal with the actual issues at hand.

 

 

DISCUSSION:   

 

 

            Was John informed PRIOR to walking into court and firing accusations at Mary?

 

How was John and Mary’s relationship going to be after litigation?

 

What were the immediate benefits of mediation?

 

 

 

 

 

 images

Taking the Apps Away:

“From the Principle’s office:  Dear Student’s.  We’ve heard that you’ve all been using your cell phones to bully and harass one another.  This will no longer be tolerated.  Until further notice this zone is a social media free zone.  We have installed a geo fence on our campus. So say goodbye to snapchat, instagram, and facebook.  When you can function together as a healthy student body, a community,  I will take the fence down and you can go back to your normal lives. “

Students reaction:

That is so unfair, its not our fault that some of the kids in our school don’t know how to behave.  I need to use my smart phone.  Why should I have to suffer because some kids are acting bad?

Maybe that’ll make students turn on another and rat out the bully’s.  Maybe that’ll make the bully’s use other means by which to carry out their acts.

Teenagers are fun when you present them with different scenarios.  If you present them with extreme situations they tend to react and then start to think.   Perhaps that is where we start to address the bullying problem.  These kids are extremely smart and are capable of working through the process.  Adults need to interact with them and not treat them as an inmate in some correctional institution.

Teaching kids how to interact is KEY.

If you go on line and look at government statistics, many policies simply don’t work to stop bullying.  Remember the three strike rule?  Not effective.  The teenagers live in their community and have to learn HOW to interact in that community.

 

 

Is it better to give a fish or teach how to fish

Teaching someone how to fish is obviously better than just providing someone a fish.  In mediation the professionals sit down and the mediator helps us brain storm on how we can problem solve the parents problems.  The collaborative process is different, more involved.  It is a process that actually provides skills to help parents minimize conflict.

Can we all agree that mediation, in and of itself, does not educate parents on how to minimize future conflict?

My favorite story involving a mediation was one in which the attorneys and mediators were engaged in how to solve the parents problems.  Three hours into the mediation and the professionals in the room had come up with an intricate plan that would resolve the issues that were causing the parents conflict.

Ah, but not so fast.  The parents signed off on the mediated settlement agreement and immediately began finding NEW WAYS to fight with one another.  The parents in fact needed to be separated from one another and the session was concluded.  The professionals did everything right,  a mediated settlement agreement was reached, BUT we had failed the parents who did not find a way out of their conflict.

A team based approach, a collaborative approach between attorneys and mental health professionals must be used to help parents learn how to resolve their own conflict.  Even parents with poor communication skills would know to go back to the mental health professional to look for solutions to their problem and not look for ways to look to conflict as a way to resolve their problem.

Collaborative techniques need to be used to help parents learn how to engage each other post divorce.  The collaborative attorneys and their team members get this concept.  It’s time for the mediators and civil litigators to start seeing the benefits as well.

 

Welcoming Remarks – Sen. Carlos Uresti

 

Welcome to San Antonio’s Magazine for Separating and Divorcing Families 

Introductions by

State Senator Carlos I. Uresti

As a state senator and attorney with 24 years of experience practicing family law, I look for ways to improve the family law system to maximize the best interests of the child being affected. This guiding principal has led me to push for greater judicial discretion when signing off on mediated settlement agreements and to require a court to look at the full household dynamic before deciding custody.
Separating from a partner and arranging shared custody can be challenging, and the legal expertise needed to navigate complex laws can be expensive.   Fortunately, the State of Texas has several resources available to help clarify what to expect and how to find help.

Individuals who are searching for the legal representation to suit their particular needs should contact the State Bar of Texas Lawyer Referral Information Service by calling 1-800-252-9690 or visit http://www.texasbar.com.

The Family Law Section of the State Bar of Texas created an organization called Family Law Cares to help families who are not able to use the standardized divorce forms. Individuals who believe they may qualify for pro bono legal services should go to www.texaslawhelp.org/find-legal-help.

As a general rule of thumb, mediation is less costly both in time and money than litigation.  While all disputes cannot and should not be mediated, maintaining civil discourse with your partner even as you begin the process of dissolving your legal relationship is paramount.

Sincerely,

CARLOS URESTI

“That’s the way it is”… and other stories of bad parenting

 

 Blindly following your court orders does not make you a good parent!

In court today I observed a hearing between two parents involved in a hearing which involved their seventeen year old child.   The parents were at odds over how the child child should share the summer, attend SAT workshops and go to Student Counsel activities.

From the dad:

“Well I never could get along with mom, I followed my orders and well she had her life and I had mine……there was truly no point in communicating with her.  I made sure I followed my orders and that’s about that.  Our child’s resilient so she can handle the court schedule. Its my time and I can do what I want with my child.”

From mom:

“Dad hasn’t budged, dad won’t work with me.  Dad won’t trade off time.  Dad won’t listen to what our child needs or wants.  Dad is not going to get time he wants if I don’t get the time I want.”

From the court:

If the child was younger I’d spend more time with you.  I can’t believe that you actually call yourself parents.  I hope your child survives and can be happy.”

Both Mom and Dad argued their case based on their wants and needs ARGUING best interest of the child WITHOUT ADDRESSING the child’s actual needs.  Both mom and dad lost their ability to parent because they failed to work together, failed to be flexible and failed to coparent.