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Tuesday, March 11, 2014

JUST SAY “NO” - THE DIVORCE COURT AND FAMILY COURT SYSTEM IS BROKEN

I have been a Family Court Attorney for 24 years, a Divorce Attorney for 21 years, and a Mediator for 25 years.  My average fee on a successful Mediation, resulting in a written, binding Separation Agreement is $1,200.00.  The highest fee I have seen in a divorce case was over $100,000.00, charged by a divorce attorney in a firm I worked for many years ago in another county.  In the end, the client ended up not getting the custodial arrangement he wanted, kidnapped the children, was arrested in California after their photos were seen on a milk carton, charged with multiple felonies, and did State prison time.  And the attorney, in that firm ended up reaping over $100,000.00 in legal fees, after he sued the mother for legal fees.  Yes, that’s right the mother, who had her children kidnapped from her and spent all her money on private investigators trying to locate the children.  The attorney even tried to attach the mother’s pension (he wasn’t successful).  After all she had gone through, there was not even one drop of human kindness in that attorney, who was my co-worker, and cared only about getting his legal fees.  Let’s all say it together, I’ll go first:  “EWWWWWW!”

            I do everything I can to encourage parties who are properly positioned for mediation to engage in the mediation process.  As I have written in previous Blogs, one of our top matrimonial Judges in New York State, Appellate Division Justice David B. Saxe, wrote an article for the New York Law Journal in 2011 entitled, "Encourage Divorce Clients to Mediate."   As Justice Saxe noted in his article, mediation clients have more control over their process, and ultimately it is the parties who craft the resolution in the end, not a judge who presides over them.  Moreover, Justice Saxe pointed out that mediation clients tend to be more satisfied with their results than litigation clients.  As Justice Saxe wrote, "if matrimonial lawyers focus on the larger picture, they might recognize that they stand to gain more in the long run from the good will and recommendations of satisfied clients than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce."

I let mediation clients have complete control over the process, with me guiding them to a resolution.  Sometimes I take a bath on the fees, giving them additional time without charge, for instance, because I really want them to get to a resolution.  I do not take an advance retainer, as I do with divorce cases.  Mediation clients pay per session.  If they don’t want to schedule another session right away, that is their choice.  When the parties see that they are close to a resolution, they will often go into what I call super-collaboration mode, working together to resolve the matters because they know they will minimize their fees.  Unfortunately, there is no such incentive in litigation (court-initiated) matters.

Not everyone is a mediation candidate.  An obvious example would be where there is domestic violence in the household.  Or where one party has stolen money.  Those parties are not on a level playing field, which is the main requirement for mediation.  But even where we start out with litigation, there is almost always the possibility of settling before a full blown trial is necessary.

For those who are in the Family Court or in Supreme Court for divorce matters, there is no governing organization trying to help you through, no incentive to finish the matter quickly and inexpensively.  The average divorce attorney locally takes a $5,000.00 to $10,000.00 advance retainer, and bills against that retainer, which evaporates quickly when there are motions, discovery, depositions, and court appearances.  There are many cases in the Hudson Valley with 6-figure legal fees, and some are still going on.

It’s time to end the suffering.  The current divorce court system and family court system is humiliating to the parties, destructive to families, and soul-sucking.  The attorneys who either intentionally keep the cases going to earn legal fees or just don’t care enough to end it quickly or to mediate the cases are the only ones who are profiting.  Someone told me they heard an attorney advertisement on the radio telling people they shouldn’t mediate divorce cases.  Wow.  I do not know who it was, but I would love to put them in a room with Justice Saxe and let them tell him that. 

I don’t have any solutions for the divorce or family court system, sorry.  I can tell you that if you or someone else is in a situation requiring legal intervention, if the two parties can sit down in a room, then try mediation.  If you are successful, you will be heroes.  To yourselves, your children if you have them, and to a new generation who just says NO to divorce court and family court.

Juliana LoBiondo
juliana@lobiondolaw.com


Juliana LoBiondo
juliana@lobiondolaw.com
www.LoBiondoLaw.com


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