Friday, October 5, 2012

Family Law: Mediation Do's and Don'ts

A couple of weeks ago, I attended a mediation with one of my clients and we saw some pretty interesting situations.  First of all, for those of you that have never attended or heard of a Family Law Mediation, let me explain the process.  The mediation process involves a third party that helps people who disagree in a family law case to reach an agreement.  What some people fail to understand is that the mediator submits his/her recommendation to the court regardless of whether or not an agreement has been reached by the parents.

When we arrived we saw usual things that you would expect to see: nervous people, quiet people, represented and unrepresented attendees and people taking children into the childcare waiting room area.  Along with the usual things, we also saw some unusual things happening: A couple yelling and using profanity, a woman telling anyone who would listen about her daughter's custody case and pending mediation, a woman loudly explaining to the clerk how she had just been released from jail, just in time for mediation.  We also saw people with family members who were trying to "prepare" them for mediation, by giving them advice on the best way to make the other parent look bad.

All of this kind of made my head spin and in some cases I had to tightly hold on to the chair to keep from getting up and demonstrating some of the "do's and don'ts" of mediation.  But alas, I remained silent and only advised my client about the mediation process, like a good little attorney. When it was my client's turn to start the process, I quickly removed myself from the mediation waiting area, lest I be tempted to say something that will get me into trouble.

In my county, if the parent (s) is represented then the attorney is required to be available for at least the last 45 minutes of the mediation.  Having the attorney present, helps to ensure that the parent (s) understands the recommendation that is being submitted to the court by the mediator. So, I promptly returned to the mediation waiting area at the appointed time and we worked out the terms until everyone agreed.  This actually turned out to be a good mediation day and the right person won, the child.

Now let's discuss what I feel are the "do's and don'ts" of mediation.  This list is not intended to be exhaustive, nor is it meant to represent the opinion of every lawyer.  Most importantly, it is not intended to be advice.  It is only intended to provide information for people who want to learn more about the mediation process.


  • Attend mediation orientation (if required in your county).
  • Pay close attention to whether or not the child needs to attend mediation (some counties require 6 and older to attend).
  • If the child is required to come, explain that he/she will go into a childcare room and make him/her feel comfortable about talking to the mediator. Make sure the child understands he/she is not in "trouble."
  • Dress in business casual clothing (if represented ask attorney for suggestions about apparel)
  • Be on time.
  • Discuss the best interest of the child.
  • Try to be flexible as long as it is in the best interest of the child.
  • Ask for a break, if you feel that you are feeling too emotionally charged to remain under control.
  • Speak clearly and listen actively.
  • If represented, ask your attorney about anything that you don't understand before agreeing to it.
  • Don't coach the child about what to say to the mediator.
  • Don't speak loudly about your case (or anything else) in the mediation waiting area.
  • Don't yell at the people at the mediation desk.
  • Don't bash the other parent.
  • Don't insist on discussing issues in mediation that the mediator has said not to or has moved on from.
  • Don't speak directly to the other parent unless the mediator asks you to. Direct your answers to the mediator.
  • Don't interrupt the other parent or the mediator when one of them is speaking.
  • Whether represented or not, do not agree to anything that you do not understand.
  • Don't be afraid to ask questions.

Tuesday, September 11, 2012

Chapter 7 Bankruptcy: 341 Creditor's Meeting

Ever sit outside of the principal's office waiting to get called in? Remember the sweaty palms and crazy escape plans that you have created in your mind?  That's kind of what it feels like waiting for your case to be called before the Bankruptcy Trustee.  Today I started my day waiting for my client's case to be called before the Bankruptcy Trustee.

It was almost like a cattle call because all of the filers and their attorney's are called into a big room to wait to learn their "fate."  When entering the room, everyone is required to pick up a few different forms depending on whether or not they are represented.  Most people were so nervous that they picked up every single form and held on to it for dear life, whether they needed it or not.  Then they get to sit and wait for their case to be called. Then just like waiting to be called into principal's office, most hang on the Trustee's every word, waiting to see if his lips form the letters that make up their name.  Then he proudly announces that he has just competed the 10:00 am calendar (at 11:25) and just as everyone's heart takes a dive into their stomach because they weren't called, they realize that they are on the 11:00 am calendar.

As everyone catches their breath from the near panic attack, I notice a lot of people sizing the trustee up a little.  He seems to ask pretty routine questions for the past three cases and I could hear my client's sighing and probably thinking, "I can do this."  Just as the room's confidence is building, CRASH!!!! goes all of their hopes of  things being "easy" as one debtor is dragged upstairs to meet with someone from the U.S. Trustee's Office with three or more creditors in tow.  Oh great, here comes the panic mode again.  However, soon the panic is drowned out by the trustee scolding someone in the room for talking by saying "Is your conversation more important than what we have going on up here?" Of course the offending parties become aware of their "err" and stop talking.

As we were watching the hearings, several more cases were called.  Debtors and attorneys were scolded alike, but that didn't stop more people from taking the rightful place at the "table."  Some required interpreters, which was promptly set up by the Trustee's call to a court provided phone interpreter.  Some had all of their documents and some had...well, um...none.  Some with and without lawyers understood the initial questionnaire and some said that they didn't consider a repossession a transfer of title or transfer of property (but this did not go over well with the trustee).  While others still were so nervous that they could not remember how long they had been in California that when asked how long they answered their whole lives.  The trustee informed the debtors that "all my life" needed to be measured in years, they each answered 25 years and 30 years.  This is only strange if one has a picture of these two debtor's being in their mid sixties or early 70's.

I know that most of that was scary, but I wrote all of that to get the scary stuff out of the way.  Shake it off!  In reality, most people get themselves way to worked up about the 341 Meeting of the Creditors.  As most posts on this topic already explain, in California, most creditors don't show up.  However if a creditor does show up, DON'T PANIC, they will only ask questions, they won't cause you any physical harm (if you have an attorney, ask them about dealing with this issue).  In helping my clients to prepare for their 341 Creditor's Meeting, I give them the following tips:
  • Take a deep breath;
  • Don't Panic;
  • Bring your driver's license and social security cards (ORIGINALS);
  • Review the petition before the hearing and let your attorney know about discrepancies;
  • Locate, pick up and complete mandatory forms upon arriving at the Bankruptcy proceeding;
  • Make sure that the trustee has a copy of the most current year's income taxes;
  • Pay attention to the Trustee's style i.e. If he doesn't like whispering in the audience, don't whisper;
  • Speak up when answering the Trustee's question because you are being recorded;
  • Wear business casual clothing;
  • Most importantly, bring everything your lawyer has asked you to bring.
Do not allow your upcoming 341 hearing to cause you to lose sleep because it really isn't as bad as you are imagining.  Just remember to breathe and follow the instructions that your attorney provides and if you don't have an attorney, make sure that you have prepared your materials according to the instructions provided by the bankruptcy court.