Hiring Experts in Mediation – It’s very Different than in Litigation

In both mediated cases and those litigated in court, experts may become involved; but their roles can be very different, depending on which process they are involved in.

A psychologist in a litigated case:

In a divorce case where there are children, a forensic psychologist will most likely be appointed by the judge, if the parents are involved in a custody dispute.

In large part, the job of the psychologist is to determine who is the better parent. And, who is the worse parent. The reason for this is that the issue in court is essentially, “Who will get custody of the children?” Someone will ‘win’, and someone will ‘lose’.

Parents and children will meet with the psychologist, separately. Many of the questions asked may be intrusive. Often, one or both parents is frightened of “losing the children”. Even loving and nurturing parents can be tempted to coach their children, telling them what to say to this mental health expert whose report may well have a significant impact on the outcome of the litigation. Unfortunately, a few parents will ask or tell the children to lie, and the consequences can be devastating and long lasting, for instance, when a child is instructed to allege abuse where no abuse has taken place.

A psychologist in a mediated case:

In mediation, the question is not “Which of you will get the children?”, but rather, “How will each of you (Mom and Dad) spend time with your children, so that you can be the best parents you can be to them, and so that your children can get the most from both of you?”* [Please note that I am not talking about a situation where there may be abuse; that is another discussion.]  Usually, parents are able to answer this question on their own, without looking to a mental health professional.

But, if a psychologist or other mental health professional is needed during mediation, the purpose might well be to have a child meet with that person to help the child, by engaging in play therapy, let’s say, where the child’s play or drawings might reveal anxieties that can then be addressed. The child can then be helped to feel more secure; the adjustments and transitions made easier and less scary.

A financial expert in litigation:

In a court case, you might hire someone to tell the court how much the marital home is worth. Your spouse might do the same. It is likely that your experts will come back with different determinations as to what the value of the home is: Probably your expert will state a number or range that favors you; and your spouse’s expert will give a figure or range that favors her or him.

Possibly, the court may ask that a third expert be hired to settle the disagreement between the original two.

A financial expert in Mediation:

In mediation, you and your spouse would discuss the need for an expert to put a value on the house; and then, if you were to jointly decide that it would be worthwhile to hire someone, you would determine how to choose a qualified professional acceptable to both of you. You would decide on how to handle the person’s fee, perhaps splitting it in some fashion; perhaps not. Either way, there would be only one expert to hire regarding this question, saving you money as a couple. You could instruct the expert to provide the most neutral and balanced appraisal possible.

Conclusion:

In mediation, you have the choice of calling upon an expert to provide solid information or to assist in solving a problem.  By contrast, in court, a judge may make such a decision for you; and there, the circumstances and the outcome may feel much more threatening.

*Paraphrasing Erickson and McKnight Erickson, Family Mediation Casebook:  Theory and Process.

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Experts who may be able to assist you (in or out of mediation)

In my last post, I began writing on the subject of getting help during divorce when it comes to gathering and understanding financial information.  I mentioned that family members , friends and neighbors may be supportive.  But, they may not be aware that we need their help; it may be awkward, even for those who care about us, to bring up the divorce and related issues, and so we may have to take that first step and let others know what we need.  In my previous post, I also suggested that enrolling in a class dealing with the basics of handling money may be worthwhile for some of us.

Now, I want to introduce the idea of looking to experts:

  • If  you are stuck, a therapist or support group might be helpful.
    • A social worker or psychologist may be able to assist if you have unhealthy attitudes about money.  If sadness, let’s say, is the issue rather than money, help in dealing with your emotions may make it easier to grapple with other matters, such as the financial ones.
    • A support group can be a very positive environment.  During my own divorce, I felt embarrassed, even ashamed.  As if I was the only one in the world going through a marital breakup. Joining a support group made me feel much less alone.
  • Having trouble with some of the numbers? Perhaps your accountant can assist you. (Depending on your needs, there are also “certified divorce financial analysts”, tax attorneys and others that may offer the services you need.   Think about what questions you need answered, and who can do that job for you. Unsure about what a particular professional does? Go on the computer and search for “What is a certified divorce financial analyst?”)
  • If you need someone to listen, help you consider and develop your goals, and then hold you to account on fulfilling those goals, a “divorce coach” might be right for you. A good divorce coach will be on your side, offer support and assist in focusing your thinking.  Even when we know what we ought to be doing, having someone to keep us on track can make all the difference in getting things done.
  • Wondering what something is worth?  Almost anything can be appraised, from jewelry to a home, to artwork or a business.  (Some caution is warranted here; not everything is worth the cost of an appraisal.  There are other methods of assigning values to items; something to be discussed at another time).

This isn’t by any means an all-inclusive list of the resources; but perhaps it will give you an idea of who and what is out there to help you learn more and get through a separation or divorce.

Spouses in mediation often avail themselves of one or more of these types of assistance.   But, of course, you don’t have to be a mediation client to get such help.

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Next time: Experts in mediation: they play a different role than they do in litigation.

Help in gathering and understanding financial information

In my previous post, I discussed the types of information that many spouses need in getting divorced; and, where to begin to look for the information. But for a good number of people, gathering these facts and figures is easier said than done.

What to do:

There are different ways to help yourself – or to have someone assist you; your temperament, as well as the money you have available, may well affect your choices. But here are some possibilities to consider:

  • People power: Do you have a family member, friend or neighbor that you trust and are comfortable with? Might that person be helpful in reviewing papers with you; or, even ‘just’ keeping you company as you do this work. Can you meet somewhere and have this person act as a sounding board as you speak your thoughts out loud. Note: It is probably best not to involve a child – even an adult child – to play such a role; of course, every case is different. But, if what you want would put your child in the middle between you and your spouse, most likely, you should choose someone else.
  • Take a course: Your local community college may offer a course on budgeting or financial literacy. Such classes are usually of short duration and reasonably priced. By attending such a class, you can learn things that will help you during (and after) the divorce. Learning may well boost your confidence. And, by going out and being around other people, you may feel less isolated and lonely.

Next time:  Experts that you may want to consider.

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Gathering Information. Part 5: Informed Decision Making in Mediation

In every divorce case, there are financial issues to address.

Some spouses come to mediation already having and understanding much of the information they will need to make decisions to end the relationship. A few have the information, but refuse to share it.

Most often, spouses are willing to provide information; but, one or both of them may be unsure about where to find it.

A mediator can help with this.

What information do spouses need?

Basically, when it comes to monetary issues, spouses have to know about the following:

  • Income: Salary, bonus, royalty, pension income, real estate income . . .
  • Expenses: Housing, food, clothing, different types of insurance, uninsured medical, home maintenance, education, recreation . . .
  • Assets: Cash, bank accounts, stock options, interest in a business, value of life insurance, motor vehicles, real estate, retirement accounts, interest in trusts, household furnishing, jewelry, art, trademarks . . .
  • Debts/liabilities: Mortgage(s), other loans, taxes owed, credit card accounts . . .

Where can I find information about my finances?

Much of the information a person is likely to need can be found in financial “statements” of one kind or another. These may be in a file cabinet or in a pile somewhere; probably, they are available online, and often will go back several years into the past.  Just to begin with:

  • Bank statements can offer a good picture of what you are spending some of your money on; if you have direct deposit, it will also tell about earnings.
  • There are mortgage statements, and ones for home, auto and other types of insurance.
  • Credit card statements will probably be helpful in showing where much of your money is going.
  • There are retirement and investment account statements; going on the computer, you can likely find out the exact value for many of them. (Note: there are certain accounts where it is more difficult to learn about what they are worth today – sometimes called ‘present-day value’. I hope to address such accounts at another time.)

A mediator will provide a form asking for the information that’s needed.

Often, I will give clients what is called a Statement of Net Worth, a form with many categories and subcategories of expenses, assets, etc. It is lengthy; but, in filling it out, clients are likely to be reminded of whatever they may have forgotten about until then.

A spouse may find it challenging to gather and go through their financial statements. In my experience, this is fairly common. If you think that the process might be difficult for you, I understand; and I want you to know that help is available.

Next time: Help in gathering and understanding financial information.

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When a client won’t provide information. Part 4: Informed Decision Making in Mediation

I’m working with divorcing clients, and Wife is sharing information about her budget. Husband refuses to do the same. I ask whether he has concerns about providing such information, and he is not forthcoming. He has the facts and figures, but won’t tell us about them, bring in financial statements, etc. To make a long story short, Husband will not fully participate in the mediation process.

What happens?

Mediation is a voluntary process, and it is the parties who make the decisions: Will they schedule a mediation session? After the first one, will they return for the next? Will they reach agreements? Each party makes these choices for her/himself.

Similarly, each party – each spouse in this example – decides whether to share information about earnings and expenses, assets and liabilities. Once in awhile, a party decides not to.

Then what?

A mediator has no authority to compel parties to provide information; s/he is unlike a judge in this way. If a party won’t share it voluntarily, all the mediator can do is:

  • explain once again why giving the information is necessary (so that all parties will have enough information to make decisions);
  • explain that the mediation will have to be terminated if the party doesn’t change his/her mind; and then,
  • end the mediation.

In my experience, unwillingness to provide information most often becomes apparent during the first phone call or at the consultation; in other words, prior to any session being scheduled. If it happens over the phone, that part of the conversation usually goes something like this:

  • Mediator: In mediation, you would both need to share information with me and the other party. Do you think that you and your spouse would be willing to do this?
  • Potential Client: No, s/he will never go for that.
  • Mediator: Perhaps you can talk this over with your spouse; or, s/he is welcome to call me, so that we could talk, just like you and I are talking now.
  • Potential Client: It would be a complete waste of time.
  • Mediator: From what you’ve just told me, mediation is unlikely to work in your situation. Sometimes, a spouse will be more flexible and open once the process begins. But, just based on what you’ve shared, mediation doesn’t sound promising.
  • Potential Client: No, but thank you for your time and explaining all of this to me.

A crucial aspect of mediation is ‘informed decision making’. When a party withholds information, the other party is unable to fully know what the situation is, and would be deprived of the opportunity to make thoughtful decisions. To work (or continue working) with parties under these circumstances would be unfair to the party denied the information.  Mediation is not appropriate; if the process has started, the mediator must end it.

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What if clients make choices that I wouldn’t? Part 3: Informed decision making in mediation

I’m working with spouses, assisting them through the divorce process. They’ve come to an agreement that on a personal level makes me uncomfortable. That is to say that one of the parties has decided to do something that I wouldn’t.

As their mediator, what do I do? The short answer is ‘Nothing’, but let me explain with the help of an example; I’ll use the scenario that I set out in my previous posts on Informed Decision Making in Mediation.

Husband and Wife own a home.

  • Wife says to me:  We have a house that we bought when we got married. I’ll be buying him out, and paying him a million dollars.
  • Husband says:  Yeah, that’s what we’ve decided on.

As part of the mediation process, we have gone over the couples’ finances. I quickly learn that Wife will not be able to afford the house.

Wife tells me that she expects to get a significant raise at her job shortly. In the meantime, she is prepared to draw on savings. If the raise doesn’t come through, Wife understands that she will probably have to sell the house within two years. That would likely mean losing money, and maybe a lot of it. But Wife is prepared to take the chance. Wife says that, “If I have to sell, it won’t ruin me.”

Now pretend that I – the mediator – wouldn’t voluntarily put myself in this situation; that I am more conservative when it comes to money than this Wife is. Maybe this means that, if I were in her shoes, I would look to rent or buy a place I knew I’d be able to afford; otherwise, I wouldn’t be able to sleep at night because of the worry.

Do I discourage the spouses from signing their proposed agreement because I think it would be ‘wrong’, at least for me?

No.

In mediation, parties are free to make their own decisions. In fact, they need to; I won’t make the decisions for them. As a mediator, I don’t need to like or agree with the choices that the spouses make; rather, I need to ensure that they have enough information to make their decisions.

In this example, the clients have reviewed their expenses and income, assets and debts. They are both informed, which means that I have done a big part of my job.

[Note: I would probably ask Wife about other potential sources of money, if she were to need it; and, raise the possibility of her meeting with a financial expert. I might ask whether it would be possible for her to speak with her boss about the chances of getting that raise she is expecting, and if such a meeting would make sense for her. But it is the parties – in this case the Wife – who answer these questions and decide what to do.]

Next time:  What if a client refuses to provide information?

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Informed-decision making in mediation (Part 2)

In my previous post, I set out the following type of situation, to emphasize how important it is to have information before making major decisions.

You find a great house to buy.  It has so many rooms!  What great condition it’s in!  What a bargain!!

Then, a week before the closing you learn that the property nearby has been zoned for a sewage-treatment plant. 

Does having this new information matter to you?  Probably it does, and you will offer a lot less money for the house, if you still want it at all.

In a divorce, spouses are making vital decisions about their lives, whether or not there is a marital home to consider.  And so, in a divorce case, the mediator will have the parties gather and share information. Additionally, the mediator work with clients to make sure that they understand financial and other information.

Let’s return to the situation I posed yesterday, where the spouses have a house, and one wants to buy out the other.  To learn about the clients’ knowledge and understanding of what they are proposing, I would ask questions that may include the following:

  • How much is the house worth, and how did you come up with that amount?
  • Is there a mortgage, and if so, for how much?
  • Where will you get the money for the buy-out?
  • Will the buy-out be made in one payment? More than one? When?
  • How will the mortgage be paid after the buy-out? Where will that money come from?
  • How much are the utilities?
  • Does the house need much work, and if so, how will that be paid for?  The roof?  Boiler?
  • Do you want/will you be able to get the house in your name alone?
  • What about the capital gains tax?
  • What are your other expenses, and how will you each handle them?

Let’s say that these clients have answers to my questions.  Both spouses understand the finances, have a realistic plan going forward, and are aware of the implications of their proposed agreement.

As a mediator, I’m satisfied with their agreement.  (Of course, there are other matters for the spouses to decide, and many of them might have an impact on their buy-out plan.)

In my mediator role , I am much less interested in what decisions the parties make, than I am in whether the parties have a very good idea of what they’re doing, and what the consequences could be.  In other words, that their decisions are ‘informed’.

 

Next time:  What if clients make a choice I don’t like?  What if their agreements won’t work?

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Nice house. Great price! But, did you know about the airport? Informed-decision making in mediation(Part 1)

Almost everyone, I would think, is willing to put in time and effort before buying a new home.  There are a lot of questions to be answered:  What condition is the house in? What is the neighborhood like? How are the schools, shopping and public transportation? Are houses of worship nearby? And so on. A house that you would consider ‘a steal’ at the price of one million dollars might seem overpriced at $200,000, if you were to learn that a waste-treatment plant or airport is about to be built just up the road.

You would want to know about that new development, right?

The point is that, when making big decisions, it is important to have enough information so that the decisions will be good ones. In a divorce, spouses are often making some of the biggest decisions of their lives, in many cases including ones about their home. Fortunately, in divorce mediation, ‘informed-decision making’ is a pillar of the process, and my next few blogs will be devoted to this subject.

As I’ve discussed in another post, it is the parties who make the decisions in mediation, and not the mediator. But as a mediator, I work with clients so that their decision making is ‘informed’.

What does this mean?

Example: Husband and Wife meet with me. It is their first session.

  • Wife says to me:  We have a house that we bought when we got married. I’ll be buying him out, and paying him a million dollars.
  • Husband says:  Yeah, that’s what we’ve decided on.”

As their mediator,do I have a problem with their agreement?

No, at least not yet.

So should I respond by saying, “That’s great! Let’s move on to the next issue.”?

No!

Why not?

Because by doing so, I wouldn’t be checking with the parties as to whether their decisions are informed.

So, I’ll ask them questions perhaps beginning with:

  • How much is the house worth, and how did you come up with that amount?
  • Is there a mortgage, and if so, for how much?
  • (to Wife) Where will you get the money to buy your husband out?

Next time:  More questions that I’m likely to ask clients; and, working with spouses who have solid answers.

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But I’ve known one of the parties for years . . . How can I mediate with them? (Part 2)

In my previous post, the questions are posed: Can a mediator act impartially in a case if s/he already knew one of the parties before they come to the mediator’s office? Should the mediator automatically refuse such a case? Because, if a mediator already knows one of the people, won’t s/he have already formed an impression or made judgements, and so be biased?

Authors/mediators Gary Friedman and Jack Himmelstein have written that:

The question for us as mediators isn’t how to avoid judgments [about the parties]. It is what to do as they arise, which they inevitably will, to keep them from blocking or limiting our effort to be fully present for each party.

What’s required is that the parties are satisfied that the mediator can be neutral “through ‘being there’ for both of you in order to help you.

I’ll want to understand what is important to both of you under your dispute, and help you understand yourselves, and possibly each other more fully. If I’m going to do that, you both need to have confidence that I haven’t already chosen sides and that I’ll never do that as part of this process.

And if at any time any of you feel that I’ve moved off my neutral position, and become partisan in the sense of being or appearing to be more on one side than the other, I’d want you to bring it up in the mediation.

In the particular case that the authors are referring to, each of the parties to the dispute had a lawyer representing them. Perhaps the attorneys could have assisted or ‘protected’ their clients if the mediator had strayed from his neutral role. But, whether or not clients have retained attorneys, I think the principle is the same. Can the mediator work in the same manner with the different parties, trying to help each to the best of his ability, and in a way that is fair and satisfactory to them, even if the mediator knew one of the parties beforehand?

Perhaps I should say that I have never had such a case in my own practice, very likely because knowing one of the parties, I would never had considered it. But I find the authors’ views persuasive; what they say here intuitively makes sense to me. There have been several occasions over the years when I’ve felt that I could have helped them, despite having known one of the parties in some way in the past.

Would I ever take such a case? The answer would depend, in part, on my relationship with the parties; I would need to be convinced of my own ability to act fairly.  I would have to disclose the nature of my relationship with them, so that both (or all) would be fully informed.  I might ask them to take some time to further think over the question; and, if they were to come back and say, “We understand that you knew one of us before, . . . (or, “I understand that you know her better than you know me, . . .), but we feel that you won’t take sides,” I might well accept the case.

And, I can see how it could go very well.

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But I’ve known one of the parties for years . . . How can I mediate with them? (Part 1)

In the first mediation training I attended, in 1997, I learned that even a brief interaction with a potential client – without the other party to the dispute being present – could result in bias; or, in the appearance of bias. In the numerous trainings I have taken since, this idea has never been challenged.

Question: If a twenty minute phone call  with someone the mediator has never talked to before can lead to bias, how is it that a mediator could know one of the parties for years and still be considered impartial?

Gary Friedman and Jack Himmelstein raise this question in their book Challenging Conflict: Mediation Through Understanding (Chapter 10).

I don’t automatically disqualify myself as mediator if I’ve had previous contact with any of the parties or have a current relationship with them as friends, colleagues, relatives or the like. But I am quite wary of mediating with people I know.   So alarm bells went off when my assistant informed me that neighbors whose dispute was notorious in our small beach community had asked if I were available.

The authors state that mediators will “inevitably” form ideas about the parties they work with: “He’s too aggressive.” “She’s self-righteous.” “He’s been wronged.”  They go on to say that:

The problem is hardly avoided by simply eliminating from one’s practice any parties the mediator has known previously.

The question for us as mediators isn’t how to avoid judgments. It is what to do as they arise, . . . , to keep them from blocking or limiting our effort to be fully present for each party.

Next time: How the authors answer this question.

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