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Why Pay to "Settle" Cases When You can Win??

Remarkably, some attorneys are in the business of charging fees to "settle" cases when you could have done that yourself....often they call this "mediation" of cases, and we don't mean mediation as to child custody.  We mean mediation-- of all issues.


PITFALLS OF MEDIATION.....YOU ARE NOT REPRESENTED BY COUNSEL AND YOU  DON'T KNOW YOUR RIGHTS !!




This attorney's past experience with such cases usually means that one client forces the other to cave in, while the client who caves in doesn't even realize that he or she caved in when it was not necessary.  OR-- one party knowingly concedes a major issue, without realizing just how major the issue is (because he/she has no attorney representing him/her) -- and then loses his/her ass, because he/she thought they were "saving money" when that was not the case.

For example, attorney has seen this done where one client who was earning $85k a year gross, vs the other party was earning $27k a year.  The parties "settled" the case because the $85k client took advantage of the $27k party and forced the $27k party into taking a huge loss in settling the case.     They played upon the emotions of the 27k client who they told to get rid of  (his/her) attorney, (which was attorney herein)..... and "settle" the case.  That 27k client (against advice of attorney herein) apparently went and signed a stipulated agreement which was grossly NOT 50-50, nor did it cover the 27k client's rights.  Of course since attorney herein was no longer attorney of record,  attorney could not protect the client.

When attorney sees things like this happen, in good faith, attorney cannot recommend either settling cases with only one attorney in the mix, or attorneys that claim they "settle" cases when in fact they are not really settling cases, but possibly taking advantage of one party.  Divorce should never be "settled" unfairly, especially under circumstances where the higher wage earner takes advantage of the lower wage earning spouse, and when there was a long term marriage.  That should never, never occur.
As it happens, in the case above, the time limits for rectifying such an errant settlement will have already run, and unless there is some change in the codes, it is likely that client who lost out will not be able to even set aside the agreement.

How very sad; such things should never happen like that.
In case you don't believe attorney herein,   then look at this response seen online,   (from the actual Mediator attorney)...to a client that went through mediation with this attorney.  The client left a review online that he was not happy with the services of the Mediator, and this is what the Mediator's response stated, no words have been changed:
                      ________________________________________________________________
         "The role of the mediator is to assist the participants reach an agreement. 
 It is not the mediator's role to give legal advice or to assure
 that the agreement is fair or equitable to either party.  
There may well be unintended consequences resulting in one or more
 of the participants suffering "buyers remorse", but they made the decision
  to accept the terms  and entered into the agreement, not the mediator..."
     ___________________________________________________________________

OMG !!!!!
  WTH!!???    Well, when I (attorney herein) read stuff like this, having seen this type of thing before---  this is exactly WHY  I always tell clients NOT to use mediation, the main reason being, simply because an agreement was made does not necessarily mean the clients understood:

(1) What they were entitled to  
(2) What they gave up
(3) Whether or not the law was known to the clients as to their rights under the Family Code or Evidence Code, or any other Civil Procedure Code, etc.
(4) Whether or not,  when nothing is explained to the parties, and neither has hired an "attorney" but have only hired a mediator (Mediator meaning ONE person)-- then did the clients REALLY understand their rights, since the "mediator" does not give legal advice, nor does the mediator assure that such agreement is fair or equitable????  

[Of course, the parties can then pay a litigation attorney for opinion on how their legal rights are affected, but if one is going to do that, most attorneys won't advise both parties, so the parties would usually have to then pay two separate attorneys in addition to the Mediator.] 

Also in the CA Judicial Council forms themselves, both limited and unlimited,  there is a clear CMC statement page (form CM110)  which states whether the parties are open to arbitration (binding or non binding), mediation, ADR, neutral evaluation, settlement conference--but in Family Law forms---those choices are never offered in such blanket options on the forms. Mediation on custody issues is an entitlement and required on any dispute involving visitation/custody.

 The entire premise of the Family Law Code is mostly based on equality and disclosure. 
And as stated BY the Mediator above, it is NOT the Mediator's JOB to (1) give any legal advice or (2) see that the agreement is fair or equitable to either party!!!! 

When parties don't even understand their rights, it is almost impossible for a mediator (again--that's one person who doesn't represent the parties!!)  to carve out an equal solution, since at least one party likely doesn't even know what he or she gave up!! 

 Family Law is quite different than just civil law, such as in a contract dispute, for example.... Different rules will apply to different subjects of law, but in particular, Family Law has distinct rules on very specific areas, such as in presumptions, waivers, and other highly specific areas where the fact pattern can drastically affect the outcome.  Failure to know that non disclosure could or would have created a windfall to one party might result in the guilty party taking far more than he/she was entitled to receive. 

 Conversely, a party that purposely lied could end up getting away with property to which he/she was never entitled.  Most divorcing clients do not want to lose property if they do not have to do so. Additionally, issues involving Bankruptcy can be either very convoluted, or laced with problems due to actions by one party which would adversely affect the other party. An example of this would be one spouse fabricating his income and then submitting that fabricated income into his Bankruptcy case as an exhibit for Family Court.   Not all Family Law attorneys know Bankruptcy law or its ramifications down the line. In particular, collateral estoppel, res judicata or Rooker Feldman issues can present a huge plethora of additional problems....further, Relief from Stay may be required in order to safely divide property of the parties.

Personally, attorney herein finds the entire scenario of "Mediation" to be very contradictory to the nature of Family Law.  Only in very rare cases where there is almost nothing to be divided, there are no kids, no need for spousal, and no property--- and a short marriage, then using a Mediator might not be too dangerous.  Not too much to lose.

 Much litigation in CA is based on nondisclosure, so even if that issue was not found out until after the mediation, the party who got screwed over should contact a litigation attorney in family law ASAP since the law and the time for setting aside may not be very long, and one could lose their ability to set aside if too much time has passed. Additionally, see http://www.scmediation.org/2015/10/confidentiality/
which covers some of the issues involving confidentiality in mediation and potential pitfalls; normal divorce cases are public records. 

If one has to settle something, it should at least be done fairly. Mediation does not provide that. And that's why I am dead set against it.  You simply have no rights if you don't KNOW what they are!!

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