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.

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.

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.

 

 

Considering a custody battle? Ask yourself – and your spouse or partner – the following:

Larry Sarezky* is a Connecticut divorce attorney who has put together the following ten questions for his clients.

In my own divorce, my greatest fear was “What will our child go through if we [the parents] fight it out in court?”  Sarezky’s questions articulate many of the potential consequences, and they are serious ones.

If you are a separating or divorcing parent, they are well worth reading and thinking about.

If you are a friend or family member of such a parent, you may want to pass these questions along.

If you are a divorce attorney, you may decide to discuss them with your clients.

  1. Do you want your children to endure months of anxiety and uncertainty as to where they will be living and whether they will have the relationship they want with each of their parents and their siblings?
  2. Do you want your children subjected to interviews by attorneys, mental health professionals and court personnel during which they will be afraid and conflicted, and will feel pressured to be loyal to both their parents?
  3. Do you want your children subjected to the possibility of inquiry by these professionals about the most personal aspects of their lives including their fears and frailties?
  4. Clinical studies have shown that high conflict between parents exposes children to serious psychological harm. Do you want to risk your children developing emotional disorders as a result of your high-conflict custody battle?
  5. Do you want your inability to resolve your differences to serve as a model of parenting for your children?
  6. Do you want intimate details of your life to become a matter of public record?
  7. Do you want a stranger deciding how much you will see your children, and how you will make decisions concerning them?
  8. Do you want a substantial portion of your assets used for fees of attorneys and expert witnesses with no guarantee that you will be happy with the result?
  9. Do you want to give up attention to detail that a negotiated agreement will have but that a judge’s decision will not?
  10. Do you want to engage in costly, time-consuming and rancorous litigation that can make future cooperation between you and your co-parent extremely difficult at best, and the resumption of amicable joint parenting nearly impossible.

* Larry Sarezky is a former Chair of the Connecticut Bar Association’s Family Law Section and an award-winning screenwriter and child advocacy filmmaker.  His articles on divorce have appeared widely. You can learn more about his efforts at:  https://www.facebook.com/ChildCustodyFilm/

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.

A Divorce Mediation Case (Part 1 of 4: The Decision to Try & the Consultation)

In a moment, we will meet Angela and Bill, a couple about to go through a realistic though hypothetical divorce mediation.  They will pay (combined) $3,350 for divorce mediation services. By contrast, in many actual litigated divorces, each spouse pays more than twice that amount ($7,500 or more) for the lawyer’s retainer.  $15,000 between them, and very often that is just the beginning of the court process.

But in going through mediation, many spouses are like Bill and Angela in regard to the fees they pay – incurring costs lower than $3,500 for their session.  For couples who split the cost in half, that is $1,750.  [This assumes the mediator charges $300. If the process takes eleven hours – more time than the large majority of my cases take – that is $3,300.]

Note:  When I say ‘going through’ and completing mediation, I mean that parties have reached agreement.  The agreement then needs to be written and filed with the court (both of which are also necessary for spouses who choose not to mediate).  There is still some work (and expense) once mediation is over; but when spouses have reached this point, they have gone a very long way in the overall divorce process.

Now, let’s meet Angela and Bill.  In this post, and the next three, we will follow them over the next several months, as they deal (sometimes heatedly) with their conflicts, assisted by the mediator.

Bill and Angela have been married for ten years, and have already decided to get a divorce. They have two children, ages six and nine. They own a home, some other assets and a couple of credit cards.  We could add many more facts, but using these should be enough to illustrate a fairly representative divorce mediation case in which the spouses have a few strong disagreements that they need to address.

 

                               Dates/What Bill, Angela and the Mediator Are Doing                                       

October  19th, 2015

Angela calls the mediator, who answers several of her questions.

 

 

October 20th, 2015

Angela tells Bill what she has learned about mediation. She tells him that:

● this mediator charges $300/hour;

● the mediator would work with both of them, together;

● they can split the fee (and Angela says she is willing to split it);

● there is a consultation that they would both have to attend together, which costs $50.

● in mediation, the mediator is paid at the end of each session (unlike most attorneys who require a retainer upfront).

● the two of them, Bill and Angela would be the ones making decisions about their children and everything else; the mediator wouldn’t decide for them.

● if they were to begin mediation, either Angela or Bill could end the process at any time.

October 25th,2015

Bill and Angela discuss trying mediation.

● Angela wants to try it.

● Bill is reluctant, thinking of it as a touchy-feely waste of time.  But, since the consult is $50, and he would pay $25 of that, Bill agrees to the consult. If it doesn’t work out, not a big deal.

● They look at a calendar and choose two dates/times that they both will be available.

November 3rd, 2015

Angela and Bill attend the consultation and learn more about mediation.

● They both like the idea of saving money – as opposed to what litigation costs.

● They would like the process to be amicable (as much as possible), especially as they have fairly young children – meaning that even when divorced they’ll have to interact with each other for many years.

● The mediator won’t guarantee anything, but tells them that many couples complete mediation within 6 – 12 sessions.

● Having children, and owning a home and other assets – and having some major disagreements on a few very important matters – the mediator offers that the case will probably take longer than 6 hours. “Let’s say it takes 10 hours,” the mediator suggests, noting again that it could be shorter or longer. “That would come to $3,000, plus the $50 for the consultation.”

● The mediator adds that, finishing mediation doesn’t mean couples are divorced.  There are things that come after:

  • “Whether you mediate or go to court, you’ll need a document that in New York is called a ‘separation agreement’; it is essentially all of the agreements spouses come to, written up in a format that the courts require.”
  • “A lawyer will be needed to write that agreement; if you’d like, I can do that for you. I charge $1,500 for that service. But you are free to choose another lawyer, if you would like to.”
  • The mediator informs Bill and Angela that “I always encourage people to each meet with their own ‘review attorney’ to go over the agreement before signing it.  Remember, as a mediator, I would be working to help you both.  Your separate review attorneys would each represent one of you.”  (“If you would like, you can certainly hire a lawyer to consult with at any time before or during mediation.”)
  • There is also a ‘filing fee’ that people need to pay to the court, again, whether they mediate or litigate.

● Angela and Bill read the “Agreement to Mediate” form, which largely sets out in writing how mediation works and other things the mediator discussed with them. They sign the form.

● The spouses schedule a first working session with the mediator for the following week.

● Bill and Angela pay $25 each to cover the mediator’s $50 consultation fee.

Next time: The Sessions on Parenting, Income & Expenses

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.

 

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.

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.

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.

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 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.

Please Like me on facebook and follow me on Twitter

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

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?

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.