Mediation is the second most widely recognized “ADR” process. Mediation, like settlement, is a formalized and labeled means of resolving disputes which remains throughout in the total control of the parties. Mediation, in its formal sense, is a process, facilitated by a professional labeled as a “mediator,” by which the parties themselves come together and agree. There is no verdict, decision, ruling or award by any third party. There is nothing to which to object, or from which to appeal.

Where Mediation Can Work

The success of mediation depends upon only three things:

  1. The willingness and preparedness of the parties to reach agreement;
  2. The participation of all parties necessary in order to reach a complete resolution of the issue or issues in dispute; and
  3. The ability of the mediator to bring the parties to the point of agreement.

Mediation is recommended when the parties and the situation are such that all three success requirements, as listed above, are present. With respect to preparedness, it is generally recommended that the parties mediate with the assistance of counsel, and that they participate in mediation with full knowledge of the facts involved and the law that would otherwise govern their particular dispute.

After and with the representation of counsel, mediation is a highly successful dispute resolution alternative in virtually all areas of the law, including securities, real estate, family law and employment.

Mediation Experience

Virginia Gaburo has represented numerous parties in mediation proceedings, has served and presently serves as a Mediator for the San Diego Superior Court, has extensive mediator training, and has many years of successful mediation experience.

A “settlement” refers to any agreement between the parties as to a particular aspect or the entirety of a dispute. A “settlement” is what is reached in mediation. A “settlement” is what is agreed to by the parties after having filed an arbitration or a lawsuit, and which takes the matter away from the arbitration forum or the court for final resolution. It is merely an agreement and accord reached between the parties, which disposes of and eliminates a particular area or all areas of dispute.

Our Approach To Settlement

This topic is included on our website in order to address certain misunderstandings that may be held by potential clients, and to set forth certain perspectives and practices of this firm.

In the majority of cases selected for representation by our firm, we will recommend making an initial attempt to reach a settlement with the opposing party be made. This may take the form of a settlement demand letter to the opposing party or its legal representative, or may be done by means of a telephone call.

We do not file a lawsuit or a claim for arbitration if our client merely wants to encourage or facilitate a settlement. We litigate or arbitrate only those claims which we believe have a high probability of success, and which we and our clients are prepared to follow through to conclusion.

We do not draft or prepare settlement demand letters for cases which we do not believe are meritorious, or for cases we have not accepted for representation by the firm. We do not file claims in order to settle them; we file claims if and because we have not been able to settle them.

It is our experience that settlements are made, before or at any stage during a pending lawsuit or arbitration, when two things occur: when both of the parties are motivated – by whatever facts and circumstances are present in their own lives – to settle; and when both parties have obtained sufficient knowledge and understanding of the case in order to competently estimate its likely result. It is our experience that settlements occur more frequently and earlier in a case the more ethical, experienced and competent are the party and its legal representative on the other side.

In recent years lawyers have begun using the term “ADR,” which refers to so-called “alternative dispute resolution” procedures and forums, and which means generally “alternatives” to litigation. High on the list of such alternatives to litigation is the process known as “arbitration.”

About Arbitration

Arbitration takes many diverse forms, and can vary widely from one forum and one context to another. In many cases, its actual procedures can be governed by contract or agreement between the parties, entered into before or after a dispute has arisen between them. It is generally designed and is expected to limit the amount of pre-hearing “discovery,” or factual and legal investigation by the parties; and to be less expensive and less time-consuming than litigation.

The Process

The “trier of fact” or decision-maker in an arbitration proceeding is a single appointed arbitrator or an arbitration panel. The parties present their cases at an “arbitration hearing.” Neither the federal nor State of California rules of evidence apply. The arbitrators can but are not required to be lawyers; and under California state law they are not required to know or to follow the law. They are required to be free from bias and prejudice, and to render a fair, impartial and equitable result, based on all of the evidence presented at the hearing. The grounds and bases for appeal of an unfavorable result are extremely limited, and in the vast majority of cases, any attempt to appeal the arbitrators’ award would be futile and not recommended. The parties themselves pay the arbitrators for their time, and pay the arbitration forum for the use of hearing sites and facilities.

Arbitration In Securities

In the securities area, most cases involving a broker dealer/customer relationship are required to be arbitrated before the Financial Industry Regulatory Authority (FINRA), or some other mutually acceptable arbitration forum. This is so because virtually every brokerage firm requires that its customers sign an opening account agreement containing a binding arbitration clause as a condition to opening an account and doing business with the firm. While there are a variety of facts and circumstances that may make litigation more appropriate for a particular dispute, in most cases this arbitration clause will be enforced, and the parties will be required to resolve their dispute through arbitration.

Arbitration In Real Estate

Arbitration is widely, and very successfully, used in real estate cases. With certain exceptions, notably multi-party construction defect cases, for which a well-reasoned and well-implemented protocol has been developed in the San Diego courts, arbitration may be the most cost-effective and satisfactory means of resolving problems and disputes involving real estate issues.

Arbitration In Family Law

Arbitration is used less frequently in the family law/dissolution context. Nevertheless, it can provide an effective alternative means of resolving an entire case; or, more frequently, of resolving a discreet disputed issue or issues of property distribution. The parties to a dissolution proceeding are free to choose arbitration over litigation for any purpose they like.

Arbitration In Employment

Arbitration in the employment context, when it is alleged by an employer to be mandated by a previously executed employment contract or agreement with the employee, is currently limited in specific ways by California state law. Generally, the courts now require that the employee’s rights to discovery, to a finding of liability, and to damages, as provided under the State’s anti-discrimination statutes and laws, are not significantly abridged; that employees not be required to pay arbitrator and arbitration forum fees which they cannot afford; and that the arbitration closely resemble and provide many of the attributes and benefits of litigation in a court of law.

Experience In Arbitration

Virginia Gaburo has represented numerous parties in arbitration proceedings, has been an arbitrator for the San Diego Superior Court, the American Arbitration Association and Kaiser Permanente; and is currently an arbitrator for the Financial Industry Regulatory Authority (FINRA). She has extensive arbitration training, and many years of successful arbitration experience.

“Litigation” is a term typically used among lawyers to refer to the process of a lawsuit filed in state or federal court. Procedurally it is governed by statute, by local rules, and by specific judge-initiated courtroom policies and procedures. Substantively, and in its ultimate result, it is governed by the applicable law–statutes and/or judicial decisional law, sometimes called “case law.”

The Process

Litigation in all courts proceeds in a generally similar fashion. The process is begun when a complaint and an answer to the complaint are filed with the court. After this, the parties prepare their respective cases by engaging in “discovery” – they serve and respond to written questions and requests for the production of documents and things, take depositions, and serve subpoenas for documents on third parties. Ultimately, and if the parties cannot agree to settle their case, they proceed to trial before a judge or a jury. A verdict or decision is reached. That verdict or decision should follow the legal precedent applicable to the particular court or forum; and it can be appealed to a higher court for a variety of reasons.

Why Use Litigation?

Litigation has its defects and shortcomings. It is attracting an increasing number of critics, many of whom are adamant and vocal. It can be extremely expensive, highly adversarial and emotional; and it has the possibility of rendering both parties to a conflict actual losers at its end. Nevertheless, in many situations, litigation is the best, and sometimes the only, means of resolving a particular dispute. It is for the most part fair, and it is predictable – you know from the start what procedure and what law will apply. And today, in the California state courts at least, litigation is comparatively speedy. You can expect to go to trial in a year or slightly more, often faster than you could have had the opportunity to present your case to an arbitrator or arbitration panel.

In fact, access to the courts, and the opportunity to go to court when necessary, are rights and privileges we all should cherish; and should make and support every effort to preserve.

Litigation Experience

Virginia Gaburo is a litigator, a successful trial attorney, and has more than 20 years of civil litigation and trial experience.

Under the California Labor Code there are two basic types of employment: employment for a specified term (in excess of one month); and indefinite or “at will” employment. At will employment is terminable by either party, upon notice to the other. California case law had held that the employer’s right to terminate an employee “at will” includes the right to unilaterally change the terms of the employment agreement, i.e., the right to demote the employee, or reduce the employee’s compensation.

Stated another way, the “at will” doctrine means that absent an employment contract or agreement to continue employment for a specific period of time, an employee can be terminated with or without cause. Does this mean that an employee can be terminated, demoted, or denied promotion for any reason whatsoever? It most certainly does not.

Prohibited Employment Practices

A host of employment practices are prohibited under the law. Included among such practices is the making of an employment decision concerning the hiring, firing, demotion and/or promotion of an employee on an improper basis, or for a reason prohibited by law. An employee cannot be terminated in response to, or as retaliation for, the employee’s standing up for or seeking to enforce his or her statutory rights-to compensation, for example. And an employee cannot be terminated, demoted or denied promotion on any prohibited discriminatory basis-because of characteristics of the employee that place the employee in a “protected” class or group.

Classes Protected From Discrimination in Employment

Certain groups or classes of individuals are described under the law as being “protected.” An employer is prohibited from making any employment decision or taking any employment action based upon an employee’s or prospective employee’s membership in the protected group or class. The groups and classes which are so protected are ever-expanding, and today specifically include individuals who are not actual members of the group or class, but who are believed or suspected by the employer to be so. In addition to the traditional prohibited discriminatory bases of race, sex, nationality and religion, individuals are today protected from discriminatory employment practices based upon their age, sexual orientation and physical, medical and psychological conditions.

Tortious Discharge in Violation of Public Policy

If a member of a protected class is terminated for discriminatory reasons, or if an employee is terminated for seeking to enforce his or her legal rights, the employee may have a cause of action against the employer for tortious discharge in violation of California’s public policy. California law construes such a termination to be not just a breach of contract, but a “tort,” for which the damages and remedies are greater in number and amount. Whistleblower claims, claims involving wage and hour disputes, and discrimination claims are among those that are frequently brought in conjunction with a claim for tortious discharge in violation of California’s public policy. Such a claim has nothing to do with whether or not the employment is “at will,” and the employee’s status as an “at will” employee is no defense to bringing it.

Employment Laws Not Uniformly Applicable

Not all employers are subject to all of the same employment laws. For example, small employers are exempt from having to provide certain leave and accommodations which are required to be provided by large employers; and religious organization employers are exempt from certain discrimination laws that apply to other employers.

Any employer who has any doubts about his or her legally mandated duties and responsibilities, and any employee who has any questions about his or her legally protected rights, should contact the California Employment Law offices of Virginia H. Gaburo & Associates to learn what laws, duties and rights apply to them.

Under California law, an employment contract is a contract by which an employer engages an employee to do something for the benefit of the employer or a third person. Employment contracts can be either express or implied. An express contract is one the terms of which are set forth in words, which can be either written or oral. An implied contract is one the terms of which are manifested by conduct.

An employment contract can be used to address the term or time period of the employment, and other important aspects of the employment relationship: job duties, compensation, performance incentives, benefit plans and programs, property rights with respect to inventions and patents, etc. Three types of provisions which are frequently included are non-competition clauses, confidentiality/trade secret clauses, and arbitration clauses.

Non-Compete Clauses and Agreements

During the course of employment an employee has the duty not to compete with the employer’s business, in any way whatsoever. After termination of employment, an employee, like anyone else, cannot compete with the former employer “unfairly.” In the context of an employment contract, or termination of employment agreement, employers frequently seek to obtain the employee’s agreement not to do specific things which the employer contends would constitute unfair competition. At the present time, and outside the context of the sale of a business or the dissolution of a partnership, the enforceability of such clauses or agreements in California is unknown. What is known is that any contract, clause or covenant by which anyone is restrained from engaging in a lawful profession, trade or business is to that extent void; and that the list of things which an employee cannot legally be required to agree to refrain from doing is ever-increasing.

The enforceability of any specific non-compete clause, covenant or agreement must be addressed on a case-by-case basis. The likelihood with respect to any non-compete clause drafted more than two years ago is that it is unenforceable.

Confidentiality/Trade Secret Clauses

Confidentiality and trade secret clauses and agreements are siblings of and overlap with non-compete clauses and agreements. Again, during employment, the employee cannot use or disclose the employer’s confidential information or trade secrets for any purpose whatsoever, other than in the furtherance of the employer’s business. After termination, the employee cannot use or disclose the employer’s confidential information or trade secrets for improper purposes or unfairly. And again, and in California, any contract, clause or covenant by which anyone is restrained from engaging in a lawful profession, trade or business is to that extent void.

What we know is that an employer’s legitimate trade secrets will be protected from any improper use or disclosure by a former employee and by anyone else under a vast body of statutory and case law outside of and other than the employment context. Whether an employer can legitimately seek to protect any other contended “confidential” information, or impose any other restrictions upon a former employee’s use or disclosure of the same is unknown, and is doubtful.

Arbitration

Employment agreements to arbitrate disputes, and arbitration clauses within employment contracts are now commonplace. When a dispute arises between the parties, whether or not such arbitration agreements or clauses will be enforced by a court depends upon a number of factors developed by California case law. The agreement or clause must not be either “procedurally” or “substantively” “unconscionable.” Some of the specific provisions which must be included are: the employer’s agreement to pay all of the costs of arbitration; the allowance of discovery; the requirement of a written decision by the arbitrator; and the employee’s right to appeal the decision to a judge of the California Superior Court.

If you have entered into an employment contract, and if you have questions about the effectiveness or enforceability of any of its clauses or provisions, contact the California Employment Law offices of Virginia H. Gaburo & Associates to have your employment contract reviewed, and to get suggestions as to how it might be revised.

If you are considering divorce or are already involved in a California divorce proceeding, there are two things you want to know from your attorney: How much will it cost and how long will it take? Unfortunately, your attorney will not be able to provide you with a definite answer to either of these questions. It all depends on the nature and amount of property involved; on the number and any special problems concerning any children involved; and, most especially, on the nature and number of contested issues. What is certain is that the fewer the disagreements and the more the parties are willing to compromise and agree, the cheaper and the faster their divorce will be.

At the law firm of Virginia H. Gaburo & Associates, San Diego lawyer Virginia Gaburo offers more than 20 years of experience representing clients throughout Southern California in divorce and family law matters. To learn more about what to expect in a California divorce, contact our law firm online or by calling 858-546-0183.

Procedure: What Happens in a California Divorce Proceeding

A divorce, legally described as a marital dissolution proceeding, is a lawsuit. It is initiated by one of the parties filing a Petition for Dissolution of Marriage in the family law division of the California Superior Court. The court opens a case, assigns a judge and a case number, and issues a summons directed to the other spouse.

Typically, the other spouse is served with copies of the summons and the petition. He or she must then file a response. Interim orders – orders that will be in place only while the case is pending (for spousal and child support, child custody and visitation, and possession and use of property) – are put in place, either by stipulation of the parties or as ordered by a judge at an Order to Show Cause (“OSC”) hearing.

The parties exchange and respond to requests for documents and information, and serve subpoenas for documents on third parties-i.e., employers, banks, stock brokerage accounts, etc. This process of gathering facts and information relevant to the issues in the case is called “discovery.” When both of the parties have completed discovery, the California divorce case is ready for trial. At trial, the parties put on evidence to support their respective requests. At the end of the trial, the trial judge makes a final ruling on all of the issues presented, judgment pursuant to that ruling is entered, the case is concluded, and the parties are officially divorced.

Settlement Benefits Both Parties

Most marital dissolution cases do not go to trial; of the ones that do, most of the issues have been resolved before trial by agreement of the parties. In fact, ethical and properly motivated California family law attorneys are looking for ways to settle the case and issues that can be resolved by agreement and without litigation from the very first meeting with their client. The proper goal for the attorneys is to facilitate agreement and minimize controversies and conflict, especially where the parties themselves are too emotionally distraught and angry to reach agreement on their own.

Your California Divorce Case Is Unique

Each particular divorce proceeding is unique in the personalities, histories and preferences of the parties; the children and extended families involved; and the property, support, custody and visitation and other issues to be resolved. No one can tell you in advance exactly how your divorce will go. You can expect, however, feelings of hurt, and failure, and a sense of loss of control, and you can look forward to a new beginning and a happier future.

Military Divorce

While military divorces are similar to civilian divorces, there are several differences. For example, you and your spouse will need to divide military benefits. You may also need to determine where the service member legally resides and in what state the children will live after the divorce.

Contact Our San Diego Divorce Lawyer

If you are considering divorce, or if you are involved in a California divorce proceeding, contactthe California family law offices of Virginia H. Gaburo & Associates. We will discuss your divorce and what to expect during the divorce proceeding.

Any divorce is challenging. However, a military divorce carries unique challenges on top of the more common divorce disputes. What state and court has jurisdiction over the military divorce? How will military retirement benefits be divided? If the civilian spouse is moving, how will that affect child custody and child support?

At Virginia H. Gaburo & Associates, we can answer your questions and help you through your military divorce, no matter what challenges you face.

Why Hire a Civilian Attorney?

JAG lawyers can give a military spouse general information about divorce, and help find the necessary forms to file. Military lawyers, however, are neither competent nor permitted to give specific legal advice, or to guide a spouse through complicated contested proceedings. Where child custody, visitation, child support or spousal support are at issue, both the military and the non-military spouse may need independent, civilian, counsel of their own.

San Diego military divorce lawyer Virginia Gaburo has more than two decades of experience helping clients resolve their divorces and other legal issues. She is respected for her integrity, aggressive advocacy and for being straightforward with her clients.

Don’t settle for mediocrity. Contact Virginia Gaburo today.

Division of Military Retirement Benefits

In California, military retirement benefits are considered community property to the extent that the benefits were earned during the marriage. Usually, the court will divide the number of years of marriage by the total years of military service to determine the percentage of military benefits that are community property. For example, if the service member spouse was in the service for 20 years and married for 10 of those years, 1/2 of the military retirement benefits will be considered a community asset and will be included in division of the community property.

There is a common misconception that you have to have been married for 10 years before military benefits become community property. This is not true. You have to have been married for 10 years for DFAS (Defense Finance and Accounting Service) to divide and pay a portion of the benefits directly to the civilian spouse. However, even if you were married for less than 10 years, a court can still order the military spouse to pay the other spouse a portion of the retirement benefits each month as they are received.

Determining Residency of Service Members

The state in which a military spouse is stationed does not automatically become his or her residence. In fact, it is often the case that a service member maintains residency in his or her home state by keeping a driver’s license there, voting there or otherwise showing a desire to stay a resident of that state.

This can have a significant effect on your case. If the service member has residency in Oregon, for example, he or she can resist being sued for divorce and/or dividing retirement benefits in California, even if he or she has been stationed in California for years. And even if the military spouse initiates a dissolution of marriage proceeding in a California court, he or she can still reserve residency rights in order to require that the division of military benefits must be done in Oregon.

Child Custody and Military Divorce

Service members are not in control of their location and may be forced to move at any time. Similarly, the civilian spouse may decide to move back home. This is one of the biggest concerns involving military divorce with children. How will child custody and visitation be decided? San Diego military divorce lawyer Virginia Gaburo can talk to you about your individual situation to help you negotiate a child custody arrangement that is in your child’s best interests.

Contact Our Law Firm

If you are considering a military divorce, or if you are involved in a California military divorce proceeding, contact the family law offices of Virginia H. Gaburo & Associates by calling 858-546-0183.

Commercial Transactions Lawyer California

Transactions dealing with real estate can be complicated. Skilled negotiations can be the difference between a good deal and a great deal. We recommend you choose your lawyer carefully.

Virginia H. Gaburo & Associates has been helping individual and business clients with their real estate transactions for over 20 years. In addition, along with her legal experience Ms. Gaburo also uses the creative abilities and innovative insight gained through her music background to custom tailor solutions that best achieve your goals.

For additional information about our law firm and the benefits of retaining our legal services, please visit our firm overview page.

To discuss your real estate transaction with an experienced real estate lawyer, please call attorney Virginia H. Gaburo at 858-546-0183, or use our online intake form.

Real Estate Transactions

We use our knowledge of real estate law to protect your interest in real estate transactions. We are prepared to assist individuals and businesses throughout Southern California with a wide range of real estate transactions, including negotiation, drafting, reviewing and enforcement of:

  • Residential and commercial leases (landlord or tenant)
  • Residential and commercial property purchases or sales (buyers or sellers)
  • Construction contracts (land owners, contractors and subcontractors)
  • Mechanics liens
  • Stop notices
  • Preliminary notices
  • Boundary and easement issues
  • Quiet title actions
  • Real estate disputes and commercial litigation

Resolving Disputes Regarding Real Estate Transactions and Property

Our firm also offers arbitration services as either a neutral arbitrator or as a skilled attorney representing your interests. Our goal is to help clients resolve conflicts through alternative dispute resolution methods that can save time and money for everyone involved.

To schedule a confidential consultation to discuss how we can help you with your real estate transaction, please call attorney Gaburo at 858-546-0183, or, if you prefer, you may fill out our intake form and we will contact you.

Purchase & Sale Agreements Attorney

Buying or selling a home is a major transaction. There are many aspects of purchase and sales agreements you should know before entering a transaction. Whether your agent or an agent representing the other side prepares the residential real estate purchase agreement, the terms of the agreement are negotiable.

At Virginia H. Gaburo & Associates, we represent buyers and sellers in residential real estate transactions. Whether you are purchasing your primary residence or a vacation home, we can help you with all aspects of your transaction.

We have over 20 years experience and are able to provide you with the knowledge and skills of a large firm and the close personal attention and dedication of a small firm. For additional information about us and the benefits of retaining our services, please visit our firm overviewpage.

To discuss your residential real estate purchase or sale with an experienced property rights lawyer, please call attorney Virginia H. Gaburo at 858-546-0183.

Experienced Southern California Real Estate Lawyer

It is important for you to understand the terms of the real estate contract and the obligations imposed by the agreement. A skilled residential real estate lawyer can help you in many ways, including:

  • Negotiating the terms of the real estate purchase agreements or sales agreements
  • Drafting the residential real estate contract
  • Reviewing a contract presented to you to ensure you fully understand the terms
  • Amend the terms of a proposed real estate contract to protect your interests
  • Assisting with any real estate dispute, including breach of contract
  • Seeking specific performance of a residential real estate purchase
  • Quiet title actions
  • Reviewing loan documents and mortgage agreements
  • Real estate litigation involving nondisclosure or misrepresentation

To schedule a confidential consultation to discuss how we can help your real estate matter, please call attorney Gaburo at 858-546-0183, or, if you prefer, you may fill out our intake form and we will contact you.