Attorney for the Child: When the AFC believes the child lacks capacity, or that the child’s wishes are likely to result in harm?

In my last post, I began writing about the role of an Attorney for the child (AFC), focusing on the following questions:

  1. What does an AFC do, generally speaking?; and,
  2. What if the AFC believes that what the child wants is not in the child’s ‘best interests’?

Question #2 assumes that, though the AFC disagrees with the child (client) on some matter, the child is capable” of making decisions

Here, I continue with a different question:

What if the AFC believes the child lacks the capacity for knowing, voluntary and considered judgment, or that the child’s wishes are likely to result in harm?

According to the Code,

When the attorney for the child is convinced either that the child lacks the capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the attorney for the child would be justified in advocating a position that is contrary to the child’s wishes. In these circumstances, the attorney for the child must inform the court of the child’s articulated wishes if the child wants the attorney to do so, notwithstanding the attorney’s position.[i]

A child may be deemed to lack the capacity not only due to age, but also due to mental illness.[ii]

Note that the AFC would be justified in advocating a position contrary to the child’s wishes if the AFC is convinced that,

following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, . . .[iii] (emphasis added).

While an AFC may act in opposition to the child’s/client’s wishes under certain circumstances, the AFC’s ability to do so is limited.

The standard leaves room for doubt – for instance,

What exactly does “serious harm” mean?

What does “imminent” mean?

Though these questions are debatable, perhaps even amongst judges, an AFC does have to meet a certain standard.  An argument by an AFC that something bad might happen years in the future as a result of following the child’s wishes, would be unlikely to meet the standard’s criteria of “likely to result” and “imminent” harm.

Note further that the AFC,

must inform the court of the child’s articulated wishes if the child wants the attorney to do so, . . . (emphasis added).

Speaking for myself, I like the idea that the court will be informed when the AFC and child disagree.  (The “must” part of this text).

But this requirement to inform the court is conditional; the AFC must inform the court if the child wants the AFC to do so.  This qualification concerns me.  You don’t need to be a mediator to know that many adults have difficulty expressing their needs and handling conflict well.  Can we expect children – who are probably under great stress due to the parental conflict, and very possibly caught between their parents – to express their disagreements with a lawyer, and be strong enough to say, “I want you to tell the judge my wishes on this matter, even though you don’t agree with me”?

It seems a lot to ask.

Whatever the answer, be aware that an AFC may be part of your case.

[i] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(3).

[ii] For that matter, adults may also lack the ‘capacity’ to make decisions due to mental illness.

[iii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(3).

 

 

Attorney for the Child: What is it? What does one do?

If you’re a parent in family or supreme court for a case relating to a child custody issue, you may have a lawyer representing you.  Of course, the other parent may also be represented by a lawyer.  But did you know that your child/ren may also have an attorney?[i]

For some parents, it is a strange idea; but if you are in court and are not able to settle the legal issues with the other parent, a lawyer may be appointed to represent your child.

What does an attorney for the child do?

An attorney for the child (AFC) ““must zealously advocate the child’s position.”[ii] (emphasis added).  That is to say that, just as each parent has ‘a position,’ a child may have one of his/her own as well.

An example:  you and your spouse or partner are separating.

You want your child to live with you.

The other parent wants the child to live with her/him.

But what does your child want?  An AFC is concerned with this question – and will represent a child much as your attorney (if you have one) might represent you.  Just as a lawyer for an adult will consult with and advise the client,

“. . . , the attorney for the child must consult with and advise the child to the extent of and in a manner consistent with the child’s capacities, and have a thorough knowledge of the child’s circumstances.” [iii]

Implicit in the role of an AFC is an acknowledgement that children have their own views, wants, and needs – and that they may be in opposition to those of one or both of the parents.

What if the AFC believes that what the child wants is not in the child’s ‘best interests[iv]?  

If the child is capable of knowing, voluntary and considered judgment, the attorney for the child should be directed by the wishes of the child, even if the attorney for the child believes that what the child wants is not in the child’s best interests. The attorney should explain fully the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.[v]

It is not the role of an AFC to substitute his or her judgment and impose it on the child/client.  If the child is “capable” of making the decision, the decision is up to the child.

Generally speaking, the older the child, the more likely it is that s/he would be considered, “capable of knowing, voluntary and considered judgment.”  Obviously, a reasonably well-adjusted older teenager would be considered far more “capable” to make decisions regarding her/his interests than let’s say a five-year old.

Next time, I’ll continue writing about the role of an AFC, looking at the question:  What if the AFC believes the child lacks the capacity for knowing, voluntary and considered judgment, or that the child’s wishes are likely to result in harm?


 

[i] There are other situations where a lawyer may represent a child.  “In juvenile delinquency and person in need of supervision proceedings, where the child is the respondent, the attorney for the child must zealously defend the child.” N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(c).

(For all of the text that I quote in this post, see https://casetext.com/regulation/new-york-codes-rules-and-regulations/title-22-judiciary/subtitle-a-judicial-administration/chapter-i-standards-and-administrative-policies/subchapter-a-rules-of-the-chief-judge/part-7-law-guardians/section-72-function-of-the-attorney-for-the-child.)

[ii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d).

[iii] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(1).

[iv] https://codes.findlaw.com/ny/domestic-relations-law/dom-sect-240.html

[v] N.Y. Comp. Codes R. & Regs. tit. 22 § 7.2(d)(2).

 

The Costs of Arbitration

Most of you are familiar with litigation, where parties often have attorneys representing them, and there may be a trial (though most cases ultimately settle).  A judge makes the decisions.  Litigation is usually very expensive, takes a long time (often years), and is harmful to relationships.

In mediation (as I and many mediators practice it), a third party (the mediator) help the parties to communicate and reach agreements that will resolve, or at least manage, their disputes.  Generally, mediation is much faster and less expensive than litigation, and because the parties work together, the relationships between them are often less damaged than if they had gone to court.

Then there is arbitration.  In this process, the arbitrator(s) make the decisions, like a judge would – and some arbitrators are former judges.  Faster than litigation, arbitration is often touted as less expensive as well.  But is it?

On April 30th, 2021, The ADR Times published an article entitled, How Much Does Arbitration Cost?[i]  The article refers to a survey of corporate counsel that “found 51% considered arbitration to be more expensive than litigation” (emphasis added). “[A]nother survey put the number at 39%,” which the article notes “is still quite significant.”

Trained as an arbitrator myself, for attorney-client fee-dispute cases, I was well aware that client expenses for arbitration can be substantial.  Still, these numbers surprised me.  Where do the expenses come from?

As the article states, “Potential costs are:

  1. Filing fees
  2. Hearing fees
  3. Administration fees
  4. Administrative expenses[ii]
  5. Hearing room rental
  6. Arbitrator and/or mediator fees
  7. Discovery costs
  8. Attorneys’ fees

According to the article, “Technically, you don’t need a lawyer to participate in the arbitration. But realistically you do.”[iii]

A few words on ‘Discovery’,[iv]  which refers to both getting information from the other party, and providing it.[v]  “Research shows that discovery accounts for 50% of the cost of litigation, for very little return.” (Emphasis added.)

But what does discovery have to do with arbitration?

The answer:  In arbitration, “Lawyers are agreeing to expand discovery and related motion practice so that arbitrations looks like litigation.”  Quoting Professor Tom Stipanowich, the article says that “arbitration is becoming judicialized.”

You may have no choice as to whether to go to arbitration if you have a dispute; it depends on the contract.[vi]  If you have a say, arbitration is worthy of consideration.  But investigate and consider your options carefully, as arbitration may

___________________________________________________________________

[i] https://www.adrtimes.com/how-much-does-arbitration-cost/?utm_medium=email&utm_campaign=Weekly%20ADR%20Times&utm_content=Weekly %20ADR%20Times+CID_8b3cc4d27cfbf76d3ed1eb588912a22e&utm_source=Campai gn%20Monitor&utm_term=How%20much%20does%20arbitration%20cost

[ii] I am unable to say what the difference is between “Administration fees” and “Administrative expenses,” C. and D above.

[iii] Of course, the type of case, the amount in dispute, and other factors need to be taken into account.  In the attorney-client fee-dispute program, some clients have attorneys representing them, but more do not, in my experience.  That said, more clients might hire attorneys to handle their arbitrations if it were not expensive to do so.

[iv] Part of the reason that discovery is so expensive is that parties, often counseled by their attorneys, make it terribly difficult to get information from the other client.  By contrast, in mediation, parties share information with one another.  Mediation clients can have attorneys, but there is no ‘discovery’ (no depositions, interrogatories, etc.)

[v] A fuller definition – from Law.com – is:

the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period.

[vi] Many, if not all, credit card companies require arbitration if there is a conflict.  Employment and other contracts may have this requirement as well.

 

A Divorce Mediation Case – Part 4 of 4: Agreements Reached & Reviewing the Costs

Bill and Angela have come a long way in handling their own divorce.  We have been with them through: The Decision to Try Divorce Mediation and the Consultation (Part 1); the Sessions on Parenting, Income & Expenses (Part 2); and then the sessions dealing with Assets (Especially the House) and Debts (Part 3) in which perhaps their biggest disagreement emerged, along with the strong emotions that came with it.  Here we will a) be with them briefly as the mediator helps the parties deal with remaining issues; and, b)    conclude by taking a look at the money the couple spent on mediation.

February 25th, 2016 – Session #5

  • After getting a value for the house, the spouses talked about other matters regarding the home. Now that the question of how much the house was worth had been answered, a serious disagreement remained about how much of that value belonged to Bill and to Angela; Angela was arguing for a 50/50 split, while Bill believed that he was entitled to a higher percentage due to work he had done on the house, and the increased value that resulted from that work.
  • Angela said that Bill was just making things difficult; that he knew she could buy him out at a 50% split, but couldn’t at any more than that. Bill denied this.

 

  • The mediator asked if they wanted to take a short break; neither one did. Then the mediator asked for more information that might enlighten the discussion. More information was shared, but no agreement on the house was reached.

 

 

  • The mediator brought up other matters, including:  filing taxes, whether/how to share in the case of a tax refund, or an audit; how to handle costs for writing the agreement, review attorneys and the court filing fee.  Angela and Bill reached agreements on these issues relatively easily.  though both were still upset, and Angela especially was concerned about dealing with the house.

 

  • The session ended, both still upset, and with Angela especially concerned about dealing with the house.

 

March 10th, 2016 – Session #6 (the last session)

  • On March 10th, Bill and Angela reached an agreement on the house, and tied up the remaining loose ends. Bill acknowledged the importance of the house not only to Angela, but to the children as well. And since Angela would probably be keeping the house for many years, during which time some expensive repairs were likely (on things that Bill didn’t have the skills to fix, though he was willing), he could come down on the percentage that he was asking for.  Angela expressed appreciation for the work Bill had done on their home, and for his willingness now to accept a lower percentage (than he had demanded earlier).
  • After further discussion, Angela proposed that either: a) Bill walk away with more of the assets than they had already agreed upon; or, b) that Bill take a small percentage of the house upon its eventual sale, which would likely be after their younger child graduated from high school. Angela agreed that she’d have to pay Bill that percentage from some other source of money that she would hopefully have at that time, or sell the house to pay him while incurring the expenses to sell the house.
  • The spouses reviewed their assets and talked further, ultimately deciding that Bill would take a greater share of the assets; an amount that Angela agreed she could live with.

And so, the mediation ended.

As previously mentioned, the “separation agreement” will need to be written. Bill and Angela have been advised by the mediator to each meet with a lawyer to review the separation agreement with them before signing it, which they have agreed to do.  Shortly after that, the separation agreement can be filed with the court.

So what did it all cost?

Mediation Fees:

  • $     50        Consultation
  • $3,300        11 hours @ $300/hr

$3,350        TOTAL

 

Other Expenses:

$1,500        Separation Agreement (needed whether people mediate or not)

  • The fees charged by an attorney to review the separation agreement should be relatively low, as this review is the only job that the lawyer will be doing for the client. There are no court motions, no depositions, no trial (and so no trial preparation), etc.
  • Court filing fee (needed whether people mediate or not)

In mediation (as in litigation), there can be other expenses, such as when spouses decide to hire an expert, such as a financial planner.  But, contrast a mediated divorce with a litigated one, and the difference in cost is often quite dramatic.

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All blog posts are for information purposes, and should not be considered as legal advice.

Should I go to law school? (Part 3 of 3)

The decision to attend law school is life changing for many who do so.  You should know what you’d be getting yourself into.  Please see Part 1 and Part 2 of this post if you haven’t already read them.

Learn about what practicing attorneys really do:

Think about what areas of law might interest you, as Ms. Cohn has; and then learn what you can about them.  How does a criminal defense lawyer typically spend her day?  You can be sure it is very different than how a contract attorney spends most of his time.

What environment would you like to work in?  A small firm?  Large firm?  Government agency?  Non-profit?  Start your own practice?   Do you think that you would like to be a litigator?  Visit a courthouse and sit in on cases that are open to the public.

Ms. Cohn is fortunate in that she has a close relative who is a long time lawyer.  Though living in another part of the country, she can have the experience of reviewing documents and engaging in research for him.  Plus, that of discussing actual cases.

She is also giving a lot of thought to applying for an internship, which can be a great way to get experience.  (This will take time, and probably won’t pay much, if at all; but weigh that against learning that you are on the right path (or not), gaining knowledge and confidence, and maybe even making good contacts, and an internship makes sense to me.)

Ms. Cohn and I talked about other ways to find people to learn from as well.  With Facebook, Linkedin and other sites, you can pretty easily reach out to those doing what you’d like to know more about, just as Ms. Cohn did in contacting me, though we were strangers to one another.  It is understandable if you are nervous about taking such a step.  All I can say is that, in my experience in reaching out, many people have been happy to speak with me on the phone, or even to meet.  I, too, try to make time for those who reach out to me.  (Some people will refuse; a few may be less than pleasant; it isn’t a terrible thing.  Be courteous and respectful of the person’s time, know what you want to discuss, and don’t ask for a job.  You will probably find a good number of people who feel flattered and are willing to share information.)

I wrote earlier that the practice of law is changing.  As it turns out, Ms. Cohn’s relative who is offering to help her gain experience is a general practitioner, and has been one for decades.  From what I’ve read, there aren’t too many of those left; most lawyers by far have a specialty these days.  So, even if Ms. Cohn wanted to become a general practitioner, that option may not be realistic in today’s world.  When you speak with people, ask what they expect to see in their practice areas in five and ten years from now.

What job opportunities will be available?

Are you open to spending over (maybe a lot over) $100,000 for your law school years?  Don’t assume you’ll earn that much coming out of law school.  Every year, there are graduates who do; but, many more don’t.  Are you aware that there may be too many lawyers and not enough legal jobs?  That many law graduates who want to practice aren’t able to, and so have taken non-legal positions?  That the debt for at least some law school graduates is crushing?

Fewer people have been applying to law schools recently, because the legal job market has been tough.  That should help those who do apply; but when and how much are questions worth exploring.

Conclusion:  I would never tell anyone whether to go to law school or not.  It is a personal, and sometimes a family decision.  I hope that this post can get you thinking about important factors that may not have previously occurred to you.

Finally, I would say that students should really be committed to becoming attorneys; they should really want it.  (If you’ve read this far, maybe that’s you.)  It is not something to do on a whim, or because you don’t know what you want to do, or because one of your parents did it.  If you do it, do it for the right reasons.  Discuss it with your family.  Learn what you would be getting yourself into.  Have in mind what it will realistically cost; and, what you’ll realistically be able to earn afterward.

As for Ms. Cohn, I wouldn’t be surprised to get a call from her again – letting me know that she has been admitted to a law school’s graduating class of 2019.

As for you, please let me know whether this post has been helpful, share your comments, and tell me what you decide to do.

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All blog posts are for information purposes, and should not be considered as legal advice.

Should I go to law school? (Part 2 of 3)

Yesterday, I posted Part 1 about the question of whether to apply to and attend law school, a step that for many has enormous financial and other implications.  Part 2 continues here:

Examine your own feelings and attitudes realistically

Do you have any idea of what attending law school is like?  If your interest/excitement stems in large part from movies, TV shows or novels, your view is distorted.   Are you interested in taking the time and effort to get a more accurate picture?

Speak with lawyers and current law students.  Hear what they have to say.  I encouraged Ms. Cohn, and encourage you, to check as to whether it is possible to sit in on a few classes at a law school to get a sense of what they are like.

Consider the different strengths that various schools have:  Cardozo Law School (in Manhattan) where I went is a leader in Alternative Dispute Resolution (mediation, arbitration, negotiation), amongst other fields.  Ms. Cohn told me that she might like to practice for the government or at public-interest law – areas that I believe the City University of New York (CUNY) Law School is strong in.

Are you willing/is it possible to commute to a school?  Take a test run, and then imagine the hundreds of times you would be making the trip, which isn’t cost free either.

If you have, or were to get the grades needed for acceptance at a “top” law school, but tuition would be much more than at a less well-known institution, what would you do?  Ms. Cohn and I discussed this, and here are my personal thoughts – which if nothing else, may prompt you to do more research on the question.

I believe that graduating from a top law school can open doors in terms of getting a job.  The school’s name and perhaps the alumni network can prove to be of great value, especially perhaps, if your goal is to work at a large law firm.  (Law schools keep data, and you should be able to learn more on this from them.)

But is the education better than at a lesser-known school?  So much so that it is worth the extra money?  Just speaking for myself, I generally don’t think so, especially if money is already a concern for you.  Of course, not every school offers the same quality of education.  Due diligence on your part is required.  A school with a low tuition that offers a poor education isn’t worth much.

On the other hand, if you have a chance at that dream school, and the alternatives aren’t much less expensive, I can imagine the extra cost being well worth it to attend the ‘better’ school.

Next:  Part 3 – Learn about what practicing attorneys really do

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All blog posts are for information purposes, and should not be considered as legal advice.

Why Mediation is Faster than Going to Court (Litigation)

Why Is Mediation Faster than Court?

Divorce isn’t easy, and divorce isn’t quick. But if the marriage is ending, you and your spouse can decide between a process that will take months (mediation) and one that very often takes over a year at a minimum, and which not infrequently takes several times that long (going to court/litigation).

[I am not talking here about an ‘uncontested divorce’. That is a different story and a different blog post, and an option to be considered for couples with a very ‘simple’ case and one without disagreements.]

Why Mediation is Faster

Mediation often takes between six and twelve hours to complete. That’s it.

Sessions usually run from one hour to two hours.

When dealing with parenting issues, spouses frequently meet with the mediator over consecutive weeks.

When dealing with financial matters, sessions may be scheduled for every other week (or with a longer interval) to allow the spouses to obtain information about the value of a house, business, pension, or other assets; or, let’s say, to work out a budget.

Of course, the spouses may need time between sessions because of travel for work, holidays or for other reasons. The mediator may also have a conflict.

In practice, many spouses successfully complete mediation within three – six months.

[When I say that parties have reached the end of the mediation, I mean that they have reached all of their agreements. But just as when going through the court process, the agreements need to be written out and filed with the court; then, there is the wait for the judge to sign the document.]

Why the Court Process/Litigation takes Longer

A spouse meets with an attorney; the other spouse does the same. A four-way meeting (with the couple and the lawyers) takes place. In many instances, though not all, these meetings bring out strong disagreements. Any of a number of motions (requests to the judge to make a decision) may be filed with the court. There is the first court appearance.   Over the course of a case, there will probably be at least one and maybe several adjournments (postponements), and the court appearance will need to be rescheduled.

In many cases, depositions are taken, where the spouses are questioned by opposing counsel during a multi-hour process that is recorded.

For four people to schedule a meeting can be a challenge and cause delay. Adjournments can be for six weeks or more.

And at this point, the court case is just getting started.

Most court cases require quite a few court appearances, not to mention a possible trial.

If there are children involved, a New York judge will likely appoint a forensic psychologist to meet separately with each family member. Think of the scheduling for that. After, the psychologist must write and submit a report to the judge, who will need to read and consider it. You’ll find out more about that report at the next court appearance.

Also, if there are children, an attorney for the child may be appointed to represent the child’s interests. That is another meeting (or more), and that attorney’s schedule to consider as well.

Just for some context, my own divorce many years ago took well over two years, and that was with my ex and I settling long before a trial was even in sight.

And that was at a time, I believe, when the courts were better staffed, making the process speedier than it is today.

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All blog posts are for information purposes, and should not be considered as legal advice.

Avoiding bias in Mediation – Starting with that first call

I continue today writing about impartiality in mediation, this post being about a policy or process to help avoid bias right from the outset.

When a potential client calls me, (or approaches me in person) I try to 1) avoid hearing about the “substance of the case”; and, 2) limit the discussion to process questions:  what mediation is, how it works and the like.

Avoiding substance:

  • Often, a potential client will begin (or turn) the call to matters that are upsetting to the caller, or deal with a desired outcome.  (Example:  “She moved out four months ago, has hardly seen the kids, and now wants to take them to her parents in Florida.”;  Example:  “He makes all this money and is threatening not to give me any.”  “Example:  “I have to be the one to stay in the house.”)
  • Hearing a lot about the case from one of the potential clients may result in bias; if it doesn’t, the other party, understandably, may believe that the mediator is biased in favor of the party who called and so can’t be impartial. This perception, accurate or not, probably can’t be changed.
  • I will frequently tell a caller (or the parties at a consultation), that “You should begin the process having confidence that I can help you both, and that I am impartial. If you don’t feel that way with me – or just aren’t comfortable with me – that’s alright. If you want to, take time and discuss it and think it over.  If you’d like, I can help you find other mediators to consider.  And, I mean it.

Turning to (or better yet, only discussing) process matters:

When a potential client gets into ‘substance’, I gently interrupt, and explain the need to avoid bias – or the perception of bias.  We then can, and usually do talk about matters such as:

  • How much mediation costs
  • How long sessions are
  • Generally, how many sessions (a range) many clients need
  • What the parties will need to do at and between sessions
  • How long before the judge signs the papers
  • I let callers know that:
    • I am not a judge and won’t be making decisions for them
    • I work to help both (or all) of the parties, and won’t be representing one against the other
    • I don’t give legal advice, such as on how a judge might decide a particular issue

Note:  I will ask a few questions, such as “Do you have children?”  But most of my initial questions I send to the parties using a brief form that both fill out individually and return to me; and, I follow up with the spouses together, at the consultation.

Yeah, it’s Voluntary; What else is Mediation? Impartial

In my previous post, I began to discuss what the process of mediation is, and explained that it is voluntary.  Mediation is also:

  • Impartial (some use the word neutral)
    • As a mediator, I work with both (or all) of the parties.  I work to understand each person, and to help them consider and speak about what s/he wants and needs for the future.  In the context of divorce, this often means talking about a place to live and how to pay for this and other expenses; and, if there are children, about spending time with them, and making decisions in regard to raising and caring for them.
    • I do not represent either (or any) of the parties; representing one party against another is something a lawyer often does.  Again, as a mediator, I work with all of the parties, helping them to gather and share information, to develop and consider options for going forward, and ultimately in reaching their agreements.
    • My role is to help the parties to communicate constructively, to guide them in considering and addressing all of the issues that they need to, to ensure as I am able to that their proposed agreements are workable (reality testing), etc. Without taking anyone’s side.

To be continued . . . .

 

Introducing My Blog

Welcome to my blog!

My goal is to discuss divorce and other family matters, such as marital problems between spouses who want to remain together, and parent-child conflicts.

In large part, I will offer information about mediation, which is a way to resolve conflicts without going to court.

Additionally, I intend to write about:

  • Attorneys (I happen to be one myself) and litigation;
  • Matters that affect families (such as what children are most concerned about when their parents divorce), regardless of whether the parents choose mediation or litigation.

I hope you will find material here that will benefit you and your family.

Sincerely,

Lee Chabin