How Family Law Attorneys Tend to Think, Part III

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Part II of this series ended with the following question from an attorney colleague on the listserv for the Family Law Section of the Los Angeles County Bar Association: “Any thoughts on how to make money as a family lawyer when you’re not prepared to screw the other side?”

My response to that question will be in a future article in this series because I believe that some additional background information is necessary.

On May 5, 2015, I spoke with Alison L. Patton, a family law attorney and mediator in San Diego, California, who also happens to have a blog on the Huffington Post. The prior day, a mutual friend reminded me that we had met each other while we were both in college. In any event, during that conversation, she asked me if I knew why the Los Angeles Family Law Bar is considered the most contentious in the country. In fact, she told me that she has been retained to represent clients in matters pending in Los Angeles because the clients had been advised to go all the way down to San Diego to find less combative attorneys. I told her that any answer I could give would merely be speculation and that I thought it was probably cultural.

In June 2012, my article titled “Litigation and Family Don’t Mix” was published by ACT of COMMUNICATION®. In that article, I stated the following: “Unfortunately, only a few years ago, the unofficial slogan of the members of the family law bar (at least in Los Angeles County) was ‘We are carnivores; we go for the kill.’ Until recently, when family law attorneys who practice mediation and Collaborative Divorce joined the executive committee of the Family Law Section of the Los Angeles County Bar Association, the members of that organization purportedly made such a claim after booing them. This attitude is inconsistent with what is needed when dealing with families in conflict.”

In order to better understand why the culture has not changed much since then, we must consider how long it takes for change to occur.

For example, July 2, 2014 was the 50th anniversary of the Civil Rights Act of 1964. On April 29, 1992, I was unable to travel from Pasadena to Beverly Hills to see a childhood friend visiting from New York because of the Rodney King riots. Interestingly enough, Alison Patton had initially been introduced to our circle of friends through that friend. Meanwhile, the Baltimore, Maryland riots occurred only a few weeks ago. In other words, we haven’t yet effectively dealt with racial issues after all these years.

How about the fact that the Equal Rights Amendment passed both houses of Congress in 1972 and has yet to be ratified by the requisite number of states?

Last week, I attended the American Bar Association Section of Family Law 2015 Spring CLE Conference. I mentioned my conversation with Ms. Patton to a colleague from another state. That colleague responded by telling me that a few years ago, she had been advised to retain counsel from San Diego to handle a family law matter in Los Angeles for that very same reason.

For those unfamiliar with Southern California, San Diego 2 ½ hours south of Los Angeles by car, without traffic.

Considering the slow pace in which change occurs, the cultural explanation seems to make a great deal of sense to me. Regardless, it most certainly doesn’t solve the problem.

That having been said, I decided to search comments made about mediation over the past four years on the listserv for the Family Law Section of the Los Angeles County Bar Association. Comments explaining why family law attorneys don’t mediate their cases because of the cost involved are as follows:

“The alternative dispute resolution is not doable for low and mid income families. To use a mediator or private judge, a party has to be able to pay his/her attorney in addition to his contribution toward mediator or private judge and other professionals (if custody is at issue). Most clients pay their first retainer and have difficulties to replenish. Alternative method works for an individual with at least $200,000 to $250,000 a year income. Otherwise, clients cannot pay for temporary support, mortgage, child care, etc. plus all additional legal fees in addition to their own attorney fees unless the mediation is provided at nominal or no cost. I have sent clients or encouraged clients to try collaborative or mediation, as an alternative, but it does not work unless they can afford the overall fees.”

“All the courts are incredibly backed up — makes one want to resort to private mediation when clients can pay those fees or are otherwise amenable.”

“I have been reading all of this literature about alternatives to litigation of family law issues — so well and good. Until such time as those services are provided ‘free of charge,’ I cannot recommend it to most of my clients — they cannot afford it. The court system is a ‘free’ resolution option…. I would only suggest that the proponents of this ‘fix the system’ target their ideals to the legislature in seeking more funding and making that possible rather than attacking the hard-working family law attorneys and their clients who have no choice but to use the court system.” By the way, it was me, who was accused of “attacking the hard-working family law attorneys and their clients.”

“If I had wealthy clients, I would mediate. However, most divorcing couples cannot afford those services.”

I was so flabbergasted by these comments, that I decided not to even bother responding to them. However, my family law attorney and mediator colleague, Leslie K. Howell, responded as follows:

“If parties mediate their matters from the beginning, they wouldn’t necessarily need to pay retainer fees to litigate their cases. It usually costs far less for a couple to mediate their case than pay and replenish 2 retainer fees. Therefore, if parties can pay for and replenish their retainer fees to their attorneys, then they can afford a reasonable mediation. In fact, clients who are not wealthy can’t afford not to mediate.”

Further justifications by family law attorneys on the listserve for not utilizing mediation will be included in future articles in this series.

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