Early Neutral Evaluations and Mini Trials – What they Are

In recent weeks, I have been discussing New York State’s plans for introducing and expanding alternative dispute resolution (ADR) programs. I have talked about the judiciary’s press release, and an Interim Report and Recommendations that have been submitted. See:  

More Mediation Soon to Take Place in New York – Much More;

Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 1); and,

Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 2).

Today, I would like to mention and give definitions of two ADR processes that many New Yorkers may be unaware of:  Early Neutral Evaluation and Mini-trial.

Early Neutral Evaluations

On the American Bar Association’s website, it says:

  • Early neutral evaluation is a process that may take place soon after a case has been filed in court. The case is referred to an expert, usually an attorney, who is asked to provide a balanced and unbiased evaluation of the dispute. The parties either submit written comments or meet in person with the expert. The expert identifies each side’s strengths and weaknesses and provides an evaluation of the likely outcome of a trial. This evaluation can assist the parties in assessing their case and may propel them towards a settlement.

Mini-trials

Also as set out on the American Bar Association website:

  • A mini-trial  is a private, consensual process where the attorneys for each party make a brief presentation of the case as if at a trial. The presentations are observed by a neutral advisor and by representatives (usually high-level business executives) from each side who have authority to settle the dispute. At the end of the presentations, the representatives attempt to settle the dispute. If the representatives fail to settle the dispute, the neutral advisor, at the request of the parties, may serve as a mediator or may issue a non-binding opinion as to the likely outcome in court.

If you file a lawsuit, can you expect to engage in either a mini-trial, or to have the case handed to an early neutral evaluator?  The answer depends on at least two factors.

  1. The timeframe:  As I’ve discussed, New York State will be expanding successful existing ADR programs, and instituting others.  But New York is a big place.  In many parts of the State, it will be months, and maybe years, before ADR programs are fully up and running.  If you bring a case (or have one brought against you) tomorrow, you may or may not be told that your case should be handled – at least initially – through an ADR process.  But a year from today – and more so two and three years from today – the likelihood of your case being dealt with through an ADR process should increase greatly.                                                                                                                                                                                It is possible that in the meantime, parties can request to engage in ADR, and depending on the resources of the courts, the request will be followed.                                                                                                                                                      If the parties were to agree that they wanted to try mediation – discussed elsewhere in many of my articles, on my blog) and on my website generally –  and if they were agreed on a private mediator to use for the process, many judges are willing to allow the mediation – but of course, the court’s permission should be sought, and your lawyer’s advice, if you have an attorney.

  2. The type of case:  The greater use of ADR will mostly be seen in civil cases, as opposed to criminal cases.                                                                                                                                                                                                                      Civil cases primarily dealing with money are more likely to go to an early neutral evaluator or to a mini-trial than other cases.  At a recent meeting I attended on “presumptive ADR” the following example was given.  Paraphrasing, it went like this:

                                                                                                                          Suppose someone breaks an arm, and a personal injury case is begun.  There have been many such cases, and the cases have evidence from doctors on the extent of the damage done.  Everybody in the process – the judge, the attorneys for the parties, and the parties themselves (after being informed by their lawyers) knows how much the ultimate award for the broken arm will be.  They know this even before the case begins.

    Such a case is probably a good candidate for early neutral evaluation (or, I would think a mini-trial).

    The final result of having an early neutral evaluator handling the case, and a negotiated settlement based on the evaluator’s findings, is likely to be the same or similar to what would happen if the case were litigated over a period of years.  The time and money saved by the parties will probably be very substantial.  The lessened burden on the parties and on the court will also be significant.

    Contrast the above “broken arm” (personal injury) case to a divorce case.  While divorce cases, especially ones involving children, often have very significant financial aspects to them (division of property, spousal maintenance a.k.a. alimony, child support), divorces are largely about relationships – the relationships between the spouses, and between the parents and each child.

    (To be sure, a personal injury case is often emotional as well.  However, usually the relationship is secondary or nonexistent.  For instance, if I slip and fall on a sidewalk, I probably don’t have any relationship with the home or business owner who is responsible for clearing the sidewalk.)

    A divorce case, or a family case, is far different from a personal injury case.  Divorce and family cases tend to defy one size solutions that fit all couples or families – as opposed to the broken arm case where the ‘value’ of the injury can be pretty well determined.

    Divorce and family cases often benefit from the parties working together to create solutions that serve everyone involved.  For such cases, we can expect mediation to be the ‘go-to’ process, rather than early neutral evaluation, or even a mini-trial.                                                                                                                               This blog is for information purposes and does not constitute legal advice.  Please consider speaking with an attorney about any case you have or are considering bringing. 

Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 2)

Last week, I began writing about New York State’s “Interim Report and Recommendations (Report)” regarding “Presumptive Alternative Dispute Resolution (ADR).”  Here, I will continue to discuss the Report further.  New York plans on greatly expanding existing mediation and other programs and initiating new ones.  The programs will deal with many types of ‘civil’ cases, from small claims to personal injury to matrimonial and more.

In part, the move toward the far greater use of mediation, arbitration, and early-neutral evaluation – some of the ‘alternative’ methods of resolving conflicts, as opposed to litigation – is the recognition of serious problems with the status quo.  For instance, many courts have long backlogs of cases.  (In one county, and maybe more, a year can pass between the time a separation agreement for a divorce is filed with the court, and when a judge signs it.)

Cases often take months – and not uncommonly years of litigation; such long delays mean at the very least a delay of justice.  Arguably, and in more than a few instances, such lengthy delays can result in the denial of any real justice at all, as the parties involved would define it.

A significant problem that has some correlation to the years of motions and trial practice that so many litigants face is the cost of bringing or defending an action.  The Report states that:

  • The cost of litigating to a final judgment often represents such a high percentage of the amount in controversy that the parties find litigating to a final judicial decision is unaffordable.

What does this mean to parties?

For some, the high costs of litigation mean that a party will essentially give in to the other side at some point, after realizing that they don’t have the resources to continue battling.  For many others, the prospect of incurring bills amounting to five or six figures results in choosing not to bring or defend a case at all.  In these instances, justice may have nothing to do with the calculation.  Sadly, far too many New Yorkers simply can’t afford justice, and so do not receive it.

The Report notes that:

  • New York and other courts have long administered or sponsored efforts to promote more streamlined achievement of final decisions or negotiated settlements, including: (1) a wide variety of court conferencing processes led by judges or court personnel; (2) referrals of disputes to dedicated court staff neutrals; (3) organization of “settlement days” in which courts try to resolve large numbers of disputes involving the same defendant in a focused negotiation effort; (4) mediations; (5) arbitrations; (6) neutral evaluations; (7) summary mini-trials; and (8) accelerated fast-track litigations.

But, these efforts over the years, which might be characterized as piecemeal, haven’t been nearly enough.  A tremendous amount of work will need to be done before courts will notice a significant reduction in backlogs.  The increased scale of ADR within the state will have to be enormous – and, it promises to be.

In regard to mediation, one goal is to have parties begin the process “shortly after the litigation has commenced.”  This aim recognizes that parties have a better chance of constructively resolving their disputes if their conflicts are addressed through mediation early.  As the parties get more deeply mired in litigation, hostilities usually rise, and the possibility of working together toward a mutually satisfactory agreement becomes more difficult to achieve.

The plans for presumptive mediation in New York are ambitious.  But the judiciary appears to be dead serious about making it happen.  No doubt, implementation will encounter some difficulties, both foreseen and unexpected.  However, the Interim Report and Recommendations is thoughtful and encouraging for those of us who believe that often, there are better ways to handle disputes than fighting them out in front of a judge.

 

Presumptive Alternative Dispute Resolution (ADR) – Interim Report and Recommendations (Part 1)

Last week, I wrote about “presumptive alternative dispute resolution,” which New York will be introducing (and expanding) throughout the state.  Primarily, I addressed mediation in that post. Here I want to continue on the topic of Presumptive Alternative Dispute Resolution (ADR), because the changes will be so significant and far reaching for New Yorkers.

But first, what is ADR?

“Alternative Dispute Resolution” refers to ways of managing and settling disputes without litigating them.  Because litigation is the way that so many conflicts have been (and continue to be) handled, other manners of dealing with disputes have been labeled as “alternative” methods.  The term – which includes the processes of mediation, arbitration, neutral evaluation and others – has not always been used with respect by some members of the legal community.  Nevertheless, ADR is set to become much more prominent in New York over the coming months and years.

The further adoption of ADR in the State, which will allow many parties to save time and money, is long overdue.  In the case of mediation especially, parties will have more control over the outcomes of their cases and suffer less stress.  Relationships that are so often badly damaged or destroyed during litigation (think divorce, for example) are significantly more likely to remain respectful and functional during and after mediation, which encourages disputants to share their stories, listen to each other and mutually agree on how to move forward.

A Statewide ADR Advisory Committee has issued an Interim Report and Recommendations.  Here are a few of the highlights:

  • There will be “increased training and education about court-sponsored mediation for judges, judicial administrators, court staff, advocates, parties, mediators, and the general public”;
  • Rules requiring “attorneys to become familiar with mediation and other processes, to discuss with clients both mediation and other potential alternatives to conventional litigation and to discuss ADR options with opposing counsel in good faith” will be promulgated.  [In the past, many (but by no means all) litigators have not informed potential clients about mediation and other ways to handle disputes.  If a client raises the idea of mediation, some litigators will speak of the process in disparaging terms.  Back in 2015, I shared my thinking that lawyers who failed to inform clients about mediation were committing an ethical violation of their professional obligations:                                                                                                                                                                                                                                           According to Section B of Rule 1.4 of the New York Rules of Professional Conduct, entitled “Communication,” a lawyer “shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representa­tion.”                                                                                                                                                                                                                                                  Is it ‘reasonably necessary’ for a divorce lawyer to tell a potential client that there is another way to get a divorce without litigating in court? I think so — if that client is to know enough to make an informed decision regarding the representation.                                                                                                                                                                                                                                                It will be interesting to see how willingly attorneys deal with this responsibility in the future.]
  • Engage with and reach out to the legal community and law students concerning early mediation and other forms of ADR.  [Teaching law students, who are generally young and who of course will first be beginning their legal careers, more about ADR should go a long way toward changing our litigious culture over time.]                                                                                                                                The Interim Report has much more to say.  I expect to continue discussing it next week.

More Mediation Soon to Take Place in New York – Much More

On July 11th, a meeting was held at John Jay College of Criminal Justice.  The meeting – on expanding the use of mediation and other types of “alternative dispute resolution” (ADR) in New York State – was led by Lisa Denig, Special Counsel for ADR Initiatives, Office of Deputy Chief Administrative Judge George Silver.

This meeting followed a May 14th press release from the New York State Unified Court system stating that:

  • In a transformational move to advance the delivery and quality of civil justice in New York as part of the Chief Judge’s Excellence Initiative, Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence K. Marks today announced a systemwide initiative in which, aside from appropriate exceptions, parties in civil cases will be referred to mediation or some other form of alternative dispute resolution (ADR) as the first step in the case proceeding in court. Dubbed “presumptive ADR,” this model builds on prior successes of ADR in New York State and in other jurisdictions by referring cases routinely to mediation and other forms of ADR earlier in the life of a contested matter.
  • A broad range of civil cases, from personal injury and matrimonial cases to estate matters and commercial disputes, will, at the onset of the case, be directed to ADR ̶ which comprises a variety of resolution approaches ̶with a focus on court-sponsored mediation.

Mediation – as the word is commonly used – may require the mediator to play a number of roles when working with parties engaged in a dispute.  A mediator:

  • acts as a neutral third party;
  • helps the disputants to listen to and better understand each other;
  • assists the parties in gathering and sharing information they need to consider;
  • works with the parties so that ideally the parties themselves develop options that may allow them to move forward;
  • helps the disputants to consider their options so that they can make the best decisions possible; and,
  • engages the parties in ‘reality testing’ to ensure to the extent possible that their choices are feasible.

It is expected that the expanded use of ADR in the state will lower costs for parties, allow for faster resolution of matters, and “improv[e] case outcomes.”

What does this mean in practical terms?  Taking matrimonial cases as an example, many spouses are likely to reach their divorce agreements in a matter of months, rather than years.  They will often spend a few thousand dollars, rather than tens or hundreds of thousands of dollars.  Though the spouses may not part as friends, in many instances they will experience less stress and bitterness than if they were to litigate.  Emotionally, parents and children will usually benefit as a result.

The press release notes that, “Court-sponsored ADR has a proven record of success, with high settlement rates and strong user satisfaction among litigants and lawyers.”

In September, administrative judges around the state are required to share information about how the expansion of ADR will proceed.  (It should be noted that numerous ADR programs already exist in New York; however, they are considered to be “under-utilized.”)  Rolling out the new programs will take time.  Not everything will be ready all at once.  But it appears that over the coming months and years, New York will join other states that encourage parties to resolve whatever issues they can without the adversity and expense that litigation so frequently incurs.

Mediation, and ADR more generally, is not a panacea.  Not every case will be settled using these processes.  But many will, and this is excellent news for the parties, an overwhelmed and backed up judiciary, and New York State.

Law School on Trial Over Employment Stats of Grads

Thomas Jefferson School of Law (TJSL), an independent law school located in San Diego, California, is being sued.  The claim is that the law school inflated its employment statistics.  So, what’s new?  There have been such allegations, and cases brought before.

What’s different this time is that this case is going to trial.

According to the legal site Above the Law:

  • While many other law schools have been taken to court over issues similar to the ones presented in the Alaburda case, never before has a law school been forced to actually stand trial for allegedly inflating its employment statistics. This is historic.

As the American Bar Association Journal put it:

  • The four plaintiffs allege the school violated California law regarding unfair business practices, false advertising and consumer protection, and committed the torts of intentional fraud, negligent misrepresentation and negligence.

Judge Joel M. Pressman of the Superior Court wrote in his decision that:

  • “[The four] Plaintiffs have all stated they believed that the employment statistics in U.S. News & World Report reflected the status of graduates who either worked in a professional capacity, worked as attorneys or worked in law-related jobs.”

Pressman looked to ‘the ‘methodology’ section in U.S. News & World Report.  “It states: ‘Employed graduates includes those reported as working or pursuing graduate degrees.’”  In other words, ‘Employed graduates’ doesn’t necessary mean that the graduates are employed as lawyers (or doing law-related work).

However, even though the four plaintiffs may not have read or understood the ‘fine print’ (By the way, should we worry about future lawyers who do not read or understand the fine print?), they may still win their case against the law school.

Pressman writes in his decision that:

  • The ‘methodology’ section in U.S. News & World Report is not necessarily dispositive.
  • A reasonable consumer would not believe employment figures included any and all employment, which would render the figure meaningless in the context of a legal education. A reasonable consumer expects the employment figure to include graduates who work in law-related jobs.

The law school tried to ward off the allegations by looking to an out-of-state (out of CA, that is) case, Gomez-Jimenez v. New York Law School, arguing “that plaintiffs could have conducted a reasonable investigation to determine the relevant information regarding the employment numbers.” Pressman responded that the Gomez case is not binding on the court (because it was decided out-of-state) and, in any event, in Gomez, no one alleged that there were inflated employment figures (and so the facts of Gomez are ‘distinguishable’ from the facts in the case against TJSL).

Among TJSL’s other arguments was this one:  that the plaintiffs had considered other factors – in addition to the employment figures – when making their choices about law school; factors including cost, ABA approval and location.

Pressman answered that “plaintiffs do not need to show that the misrepresentation was the sole or predominant or decisive factor.” Rather, there is a factual question that must be considered at a trial.

I don’t know how this case will be decided.  But something that I can say is this:  at least a few law schools are nervously watching this one.

For anyone interested, I’ve also written on Should I go to law school? and The NYT on the law school debt crisis.

Please Like me on facebook and follow me on Twitter

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

 

 

 

 

Loneliness again

Last week, I wrote about The loneliness of divorce, especially during the holidays.  In it, I looked to an article (Happy Holidays? Maybe and Maybe Not) by Vickie Adams, a Certified Divorce Financial Analyst and Certified Financial Planner.  Adams discussed a close friend who had seemed to be in a great marriage; but in reality, there was much loneliness and suffering underneath.  I discussed lonely feelings that I had during my own divorce and how isolated I felt, as if I were the only one in the world going through a marital breakup; though of course many people were, and though as a divorce mediator and as a lawyer, I knew full well how common divorce actually is.

This morning I read a piece (The Dark Side of Loneliness) by Darlene Lancer, LMFT, Author, Speaker and Life Coach.  She shares that:

  • Twenty percent (60 million) of Americans report that loneliness is the source of their suffering.

And, as many of  us know firsthand, we don’t have to be alone to feel alone:

  • [Loneliness] can be felt while in a relationship or group. This is because it’s the quality, not the quantity, of social interactions that determines whether we feel connected.

She (and others) attribute loneliness in part to the use of digital devices, stating that “People spend more time on [them] than in face-to-face conversations.”

Lancer refers to her own experience:

  • Years ago, I believed that more shared activities would create that missing connection, not realizing it was something less tangible–real intimacy, which was absent in my relationship. (See “Your Intimacy Index”). Instead, like most codependents, I experienced “pseudo-intimacy,” which can take the form of a romantic “fantasy bond,” shared activities, intense sexuality, or a relationship where only one partner is vulnerable, while the other acts as adviser, confidant, provider, or emotional caretaker.

She discusses the connection between loneliness and shame, and how these feelings can stem from childhood experiences.

  • Meanwhile, children’s growing sense of separation from themselves and lack of authentic connection with a parent(s) can breed inner loneliness and feelings of unworthiness. “The awareness of human separation, without reunion by love–is a source of shame. It is at the same time the source of guilt and anxiety.” (Fromm, E., The Art of Loving, p. 9)

Feeling lonely, we may withdraw, which often results in greater feelings of isolation and loneliness.

Further, Lancer writes about health risks associated with loneliness, which I’ll leave you to read about, if you care to.

There are ways to cope with loneliness, though taking that first step may be difficult.

  • We really have to fight our natural instinct to withdraw. Try admitting to a friend or neighbor that you’re lonely. To motivate socializing with other people, commit to a class, meet-up, CoDA or other 12-Step meeting. Exercise with a buddy. Volunteer or support a friend in need can to take your mind off of yourself and lift your spirits.
  • As with all feelings, loneliness is worsened by resistance and self- judgment. We fear experiencing more pain if we allow our heart to open. Often, the reverse is true. Allowing feelings to flow can not only release them, but also the energy expended in suppressing them. Our emotional state shifts, so that we feel invigorated, peaceful, tired, or content in our aloneness.

It’s a fact – the holidays can be a time of loneliness; cold weather and less sunlight at this time of year don’t help.  But perhaps knowing that many others feel similarly can provide some type of comfort.  And maybe you can or will be able to follow Lancer’s advice, or other good advice that’s out there.  Perhaps tomorrow.  Maybe even today.

Please Like me on facebook and follow me on Twitter

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

The loneliness of divorce, especially during the holidays

Vickie Adams, a Certified Divorce Financial Analyst and Certified Financial Planner,  recently wrote about the difficulties that many have at this time of year.  (Happy Holidays? Maybe and Maybe Not.)

She begins by talking about a friend who seemingly – or perhaps actually, at one time – had the type of marriage that others would dream of.

  • I have a close friend whom I’ve known for many years. She is always busy, dressed to the nines. I’m most likely to see her pulling out of her driveway, on her way to another weekend getaway or special event with her handsome husband and a smile on her face. One year, I watched them on successive days of the week go out and keep adding to their front yard Christmas display, until I thought it could be seen from outer space. I thought, “Wow, she’s so lucky to have such a great partner who takes such an interest and is willingly out there participating in these things with her.”

But, then Adams learned from her friend that all was not as it seemed.  The couple would be divorcing, and the friend shared how she was “struggling to regain her self-worth after years of put-downs, criticism and infidelity.”  What had appeared on the surface to be one thing, was something very different underneath.

Adams finds her friend’s situation to be a “kind of analogy for the holiday season.”

  • For weeks, we are bombarded with holiday images of people enjoying meals and activities with friends and family; exchanging beautifully wrapped and often expensive gifts; decorating their homes. We are shown constantly that some lucky woman out there somewhere will be the recipient of a fabulously expensive Lexus, complete with a huge red bow, courtesy of her husband.
  • The message is that everyone is happy and joyous and has an unlimited gift budget. The subtle underlying message is, there is something wrong with you if you aren’t having the same experience.

But of course, the reality is different.

I say “of course”, but I remember my own divorce.  I felt alone, and that I was the only one going through a breakup.  That I had failed, whereas everyone else was in a successful marriage.

My feelings were not matched by what I knew to be true:  Many people  separate and divorce.

Pretty much anyone who knows anything about American society, at least when it comes to the family, is aware that divorce is common.  And as a long-time divorce mediator, I knew that as well as just about anyone.

But, I felt like it was only me.  I think that this is why the post by Adams resonates with me.

Not only are there messages telling us that this is a time to be joyous, but we as individuals may tell ourselves the same thing, beating ourselves up for sadder feelings that are natural and predictable.  We may put up a front and tell others – neighbors, friends and even family members – that things are alright, when they are anything but.

Adams writes that:

  • While some people are actually enjoying the holidays, a larger number, maybe 40%, are thinking:
    • I just have to make it through, and I can file for divorce after Christmas
    • I’m only here because of my child
    • I’d rather be alone
  • But there is nothing unique about not enjoying the holidays. Advertising and people’s perceptions aside, the holidays can be especially tough for those in the divorce process or the newly divorced. For many, it’s a time of painful memories, what if’s, adjusting to new parenting schedules, or financial concerns.

It can be hard to remember, and harder to feel, but the truth is that many people are involved in a breakup.  (This is not to say that anyone else could ‘put herself in your shoes’; you are an individual, and that is to be respected.)  Your feelings are legitimate, and if you can keep from beating yourself up for having them, this difficult time may become slightly easier.

In separation and divorce, there is a grieving process to go through.  The changing dates on a calendar can’t change that.

Please Like me on facebook and follow me on Twitter

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

‘Gray divorce’: How much of the growth in older people divorcing is due to the reluctance to try counseling, or skepticism that it can help?

Therapists have told me that when there is conflict, younger couples often begin therapy earlier than older ones. How much does this reluctance to begin contribute to Gray Divorce?

In 2013, a study came out entitled, The Gray Divorce Revolution: Rising Divorce among Middle-aged and Older Adults, 1990 – 2010.  Authored by Susan L. Brown and I-Fen Lin, both in the sociology department of Bowling Green State University, their research is revealing.

Here are some of the results:

  • The divorce rate among adults ages 50 and older doubled between 1990 and 2010.
  • Roughly 1 in 4 divorces in 2010 occurred to persons ages 50 and older. . . .
  • The rate of divorce was 2.5 times higher for those in remarriages versus first marriages while the divorce rate declined as marital duration rose.

The study looked at many factors and circumstances that may contribute to gray divorces. Some of them are directly related to “the unique events and experiences characterizing” the “life course stages” of middle age (50 – 65) and older adulthood (65+). During these stages, “many couples confront empty nests, retirement, or declining health, which can pose considerable challenges for marital adjustment. These turning points can prompt spouses to reassess their marriages, ultimately leading them to divorce.” (Citations omitted)

Other findings include:

  • Middle-aged adults are experiencing a higher rate of divorce than older adults.
  • Men and women 50 and over are divorcing at very similar rates (9.8 divorced men per thousand married persons; 10.3 women divorced per thousand persons).
  • “There is some racial and ethnic variation in the risk of divorce among those ages 50 and older.”
  1. Blacks (20.5 divorced persons per 1,000 married persons)
  2. Hispanics (11.3 divorced persons per 1,000 married persons)
  3. Whites (9.0 divorced persons per 1,000 married persons)
  • “The divorce rate also differs by economic resources” – including education. Those with a college degree experience a considerably smaller risk of divorce compared to those with lower levels of education.
  • The rate of divorce is highest among the unemployed.
  • Older adults who are not in the labor force (presumably because they are retired) have the lowest divorce rate.

One factor that isn’t considered by the study is the hesitation by those who are older to engage in therapy.  While a younger generation has grown up with the idea of meeting with a psychologist or social worker, for people who are older the thought may have more of a stigma.  For older adults willing to try therapy and couples counseling, how many are skeptical or so uncomfortable that they are unable to fully engage in the experience, and therefore end the process prematurely, or otherwise hold themselves back and greatly lower the chances that it will be helpful in saving their marriages?

In addition to factors that apparently contribute to gray divorce, the authors discuss the “implications for individuals, their families, and society at large.”

  • It is likely that divorce has “negative consequences, particularly for those who did not want the divorce or who are economically disadvantaged or in poor health.”
  • “Divorced older adults no longer have a spouse on whom to rely and are likely to place greater demands on their children.” These children may be asked to serve as care givers in lieu of the absent spouse. “The strain of such intense obligations may weaken intergenerational ties. . . .
  • Adult children are particularly unlikely to provide care to their divorced fathers.”
  • “Some older adults may not have children available nearby to provide care,” and so “the rise in later life divorce may place additional burdens on society at large, as divorced individuals will be forced to turn to institutional” assistance rather than look to the family for support.

The study, which the authors acknowledge has limitations, is somewhat alarming. But having this information will surely help society deal with the consequences of gray divorce, which are likely to become more apparent over the coming years.

Please Like me on facebook and follow me on Twitter

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

When a Conflict Can’t Be Resolved – Part 2 of 2

In Part 1 of this post, I discussed issues raised by Bernard Mayer in his book, Staying with Conflict:  A Strategic Approach to Ongoing Conflict.  As mediators, we talk about ‘Conflict Resolution’ and ‘Dispute Resolution’.  Our field is often called ‘Alternative Dispute Resolution’.  With so much of our focus on ‘resolution’, are we as mediators missing many of our (potential) clients’ concerns?  When we say to them that we help to resolve conflict, do some tune us out, because they know very well that not every problem can be fixed?

His answer is ‘yes’.  Many parties come to us with certain disputes that we may be able to help them resolve.  But frequently, they all also involved in ‘enduring’ or ‘long-term conflicts’ that aren’t resolvable, regardless of our skills and experience as mediators. These unresolvable disputes may, however, be manageable.

I’ll leave it to you to read Part 1 of this post as I continue now with the following question:

What does enduring or long-term conflict mean and look like for a divorcing couple; let’s say one with young children?   These parents know that they will have to deal with each other for many years to come.  Many such parents can reasonably expect frequent disagreements, tension, arguments, perhaps accompanied by pressure to give in and abusive language.

And so, if a mediator explains to such a couple that “I will work with you both so that you can reach agreement on all of the matters that you need to, so that you’ll be able to move on with your lives”, maybe that comes across to the parties as hollow.  Naïve.  Unrealistic.  Perhaps mediation sounds too good to be true, and so is seen as a waste of time and money.

In a blog post I wrote, Words Matter:  Out with ‘Custody’; In with ‘Parenting’, I discussed the importance of language when dealing with conflict.  While mediators know (or should know) this, we may be unclear in telling others about what we do, and what the potential parties can reasonably expect.  We can do better with our explanations.

Let’s see if this explanation rings truer and is more in line with the expectations of many people in conflict.  Let’s say it is for a couple ending their marriage.

  • If you’re getting divorced, I can help you to discuss the issues between you, and to reach agreements on all the matters you’ll need to, in order to be divorced under New York State law.  This doesn’t mean that all of your issues will be permanently resolved, and that you won’t have disagreements in the future, about your children, for instance.  Your kids will keep growing and changing, and you, the parents will change too.  You won’t always be on the same page.  But, part of my job is to help you consider what any agreements may mean for the future, to help you decide if they make sense for you.  And,  I’ll work with you to determine how to communicate in the future and handle questions that arise, to give you the best chance of dealing with them effectively and respectfully.

Recognizing that parties may be involved with an enduring conflict, and attending to such conflict, does not require ignoring the more immediate issues.  As Mayer writes:

  • A focus on enduring conflict does not mean that we are not interested in helping people resolve conflicts or achieve agreements on nagging issues.  We have an important contribution to make in this arena, and we ought not to sacrifice this important part of our work to our focus on enduring conflict.  But we also need to understand the role of agreements in enduring conflict.  They memorialize progress that has been achieved and create new and, we hope, more constructive platforms from with to continue the conflict t engagement process.  As we work with disputants on resolving issues in the course of an enduring conflict, we need to keep in mind–and help disputants to understand–that resolving issues does not end an enduring dispute.   (Staying with Conflict:  A Strategic Approach to Ongoing Conflict, pp. 269, 270.)

Please Like me on facebook and follow me on Twitter

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

 

When a Conflict Can’t Be Resolved – Part 1 of 2

Mediators have long asked themselves, and one another, why more people don’t engage in mediation.  The process has so many advantages and few drawbacks, that it is difficult to understand why relatively few people are at least willing to try it.

Consider that mediation:

  • is generally a lot quicker than going to court;
  • much less expensive;
  • less adversarial, as parties are helped to listen to and understand one another, and then to work together; as opposed to the polarizing experience of litigation;
  • allows the people having the dispute to make their own decisions, rather than a judge deciding questions for them;
  • is voluntary, meaning that either party can end the process at any time; and,
  • allows for greater creativity in developing responses and solutions to conflict; because the spouses (or other parties) are experts in regard to what they want and need (as opposed to a judge who is a stranger, and one loaded down with a large docket of cases that doesn’t leave him or her time to fully consider many options).

What’s not to like?  What’s the risk?  Why oh why don’t we (mediators) have an overflow of clients? So many clients that we need to refer and turn them away in droves?  Bernard Mayer – mediator, facilitator, trainer, researcher – offers an answer to the question that I had never thoughtfully considered before reading his book, Staying with Conflict:  A Strategic Approach to Ongoing Conflict.

I have long believed that most people don’t try mediation when they are engaged in a conflict largely because:

  1. they don’t have information about what mediation is/how it works, and so “don’t realize what they are missing” (including that the results are binding, if the parties want them to be);
  2. going to court is familiar – think about the hundreds of movies, TV shows and novels involving a courtroom drama; and now see if you can name three dealing with mediation.  While people know that going to court (and perhaps to ‘divorce court’ most of all) can be a bitter and difficult experience, doing so still means dealing with ‘the devil you know’; and,
  3. family and friends are quick to suggest what may be conventional wisdom – hire the meanest, nastiest lawyer you can; feeling vulnerable, and perhaps angry, saddened, tired or confused, people follow that advice, usually not knowing what they are in for, and that there are other methods that may well work for them.

In his book, Mayer discusses another reason:

Perhaps some people don’t believe mediators when we talk about helping to ‘resolve conflicts’ (or to ‘resolve’ disputes).   Alternative dispute resolution may not be credible to people engaged in what Mayer calls ‘enduring conflict’ or ‘long-term conflict’.

Example:  If a mediator told you that s/he could help the parties resolve a crisis in the Middle East (take your pick of which one), you would probably be skeptical, to say the least.  Many of the conflicts are deeply rooted and have been going on for decades or longer.  That anyone is going to resolve (end/finish) such a conflict doesn’t seem realistic.

But what if the mediator said to you that, “I think I can work with the parties to help them manage the conflict.  I don’t have any illusions that I or any mediator can help all of the parties I work with to settle all of the issues for all time.  What I can do is assist them in discussing some of the most pressing and immediate problems; I may be able to help them reach some agreement(s) to improve the situation (such as for a cease fire or prisoner exchange during a war).  As a mediator, I can work with them on choosing ways to keep communication going, and help them to take advantage of opportunities to work together as the conflict continues.”

If the mediator is referring to a crisis in the Middle East, what s/he is proposing – helping the parties to manage the conflict – is still a very tall order.  But it has happened, as hard as that may be to believe with the chaos engulfing the region at present.

Enduring conflict does not only exist on the international level, or have to involve matters of life and death.  Such conflicts may exist between business partners,  teachers and parents working with a special needs child, communities and local governments, environmental groups and industry, two parents over child-care issues or religious upbringing; and of course, in many other situations.

Next time:  What ‘enduring conflict’ may mean for divorcing parents; and for the mediators working with them.

Please Like me on facebook and follow me on Twitter

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