Question regarding pending trial

[United]

Hello,

We completed a hearing to review mediators report for custody. It was favorable toward Dad and he wanted report adopted as is.  

Mom objected, mostly to school year timeshare where report called for kids with Dad during the week due to her poor choices and toll it has taken on kids.  (70-30 proposed for schoolyear)

Becuase of her objection, the report was adopted for summer timeshare (50-50) and no other changes.  Trial date was set.

In addition Mom was ordered to undergoing testing for possible adiction and it was strongly suggested that she take classes to quell domestic violence children have been witness to repeadedly in her care.

1. I know you don't have a crystal ball, but considering the report was adopted, at least temporarily, and there was an awareness by the judge of Mom's "issues", how best might we avoid the expense of a trial and get her to settle at pre-conference?

Thanks so much for any advice!

[United]

eom

[socrateaser]

>1. I know you don't have a crystal ball, but considering the
>report was adopted, at least temporarily, and there was an
>awareness by the judge of Mom's "issues", how best might we
>avoid the expense of a trial and get her to settle at
>pre-conference?

You're lucky that the mother allowed the report to be adopted, as it is confidential, and based on what you state, if I were her, I would have objected to its entry into evidence.

Well, I would serve a "request for admissions" to her, based on the various facts in the report that weigh heavily in your favor, and then, if she admits them, which she must, unless she wants to pay all your legal fees, then you can simply ask the court to take judicial notice of the facts admitted, and request that the court rule in your favor.

This won't necessarily get you out of the trial, but it should substantially lower your burden of proof, and may help in achieving a negotiated settlement.

[United]

Please help me understand this better. It sounds very intriguing, but clearly I need is spelled out for a newbie, if you would be so kind...

1.  The mediation itself was court ordered, private mediation.  So, what I hear you saying is that if the report had not been adopted it would basically be unuseable in trial? But once it's adopted it's evidence?

 2. If she doesn't admit to the facts included in the "request for admissions" how does would that make her liable for our legal fees?  

ThankyouThankyouThankyou!

[socrateaser]

>1.  The mediation itself was court ordered, private mediation.
> So, what I hear you saying is that if the report had not been
>adopted it would basically be unuseable in trial? But once
>it's adopted it's evidence?

The short answer is YES.

I may have wrongly assumed that your mediation was conducted by the court-provided mediators, and subject to the various rules of the CA Supreme Court.

However, even if not, generally, mediations are confidential, unless otherwise agreed to, and the only admissible evidence that may issue from them is evidence that an agreement was made, and if so, the terms and conditions of that agreement (and of course, evidence, of no agreement).

>
> 2. If she doesn't admit to the facts included in the "request
>for admissions" how does would that make her liable for our
>legal fees?  

A general principle of law is, that a party who denies a fact or facts contained in formal request for admissions, challenges the other party to prove said fact(s), and the penalty for failing to admit, is to pay the legal fees and costs associated with proving the fact, in consideration of wasting the court's time on an issue that, but for the party's denial, would have been admitted as fact in advance.

Usually, requests for admissions, are intended to take issues off the table, so as to get to the meat of the dispute without delay. Sometimes a party propounds a request in expectation of a denial, precisely because they desire to force the other party to pay for something that will almost certainly be denied, but which can almost certainly be proven.

[United]

eom