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.

 

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.

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.

 

 

Words matter: out with “custody”, and in with “parenting”

I recently came across an article, ‘Custody’ and ‘access’ terms promote conflict, litigation. (Thanks to whoever shared it.)   The article appears on “AdvocateDaily.com:  Canada’s Legal News”, but is as valid for readers in the United States as it is for Canadians.

The subject of the article – how language affects conflict in parenting disputes – isn’t new. You may know that “custody”, the term found in many statutes dealing with arrangements for children following a separation or divorce, is the same word used in the criminal justice system (as in, “The suspect was taken into custody”).  It is also the same word that is sometimes used in regard to property.  But of course, children are not prisoners or property.

But, does language really matter?

Speaking from personal experience, I can say that one or two words can make a very big difference.  Many years ago, during my own divorce, I was absolutely infuriated when my wife’s attorney condescended to tell me that “Your daughter can visit with you.  You can have a room for her, with her own bed. . .”   I mean, how hard would it have been for that lawyer to have said instead, “Let’s talk about how the two of you as parents are going to raise your child.”  Like “custody”, “visitation” is a word associated with the criminal justice system.

The article notes that:

  • British Columbia is the first Canadian jurisdiction to change the terminology from “custody” and “access” to “parental responsibilities,” “parenting time” and “contact” in the province’s new Family Law Act.

How many of the states in the U.S. have done the same is a question I can’t answer.  (If you happen to know, please share that information).  But it is a step forward, and not an insignificant one.

One reason that the article made an impression on me is because a judge was quoted as saying:

  • “These words denote that there are winners and losers when it comes to children,” says Justice Mary Lou Benotto . . .  “They promote an adversarial approach to parenting and do little to benefit the child. The danger of this ‘winner/loser syndrome’ in child custody battles has long been recognized.”

When judges speak out, at least a few people tend to notice.  But, changes that would seem to allow for obvious improvements can be frustratingly slow; and, I’m not expecting the terms “custody”, “visitation” and “access” to be replaced nationwide anytime soon.

By the way, if you read the article, you will see that an attorney who is interviewed for it, Steven Benmor,  offers that “replacing [such] words with “parenting time” would be in the best interest of the child.”  [emphasis added].   Recently, I wrote about this subject for nyparenting.com, in a piece entitled Best Interest of the Child:  A Vague Notion.  The AdvocateDaily.com article does not define “best interest of the child”; but, it is interesting to see how this nebulous phrase – one that denotes an extremely important concept – is used.

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 4 of 4: Agreements Reached & Reviewing the Costs

Bill and Angela have come a long way in handling their own divorce.  We have been with them through: The Decision to Try Divorce Mediation and the Consultation (Part 1); the Sessions on Parenting, Income & Expenses (Part 2); and then the sessions dealing with Assets (Especially the House) and Debts (Part 3) in which perhaps their biggest disagreement emerged, along with the strong emotions that came with it.  Here we will a) be with them briefly as the mediator helps the parties deal with remaining issues; and, b)    conclude by taking a look at the money the couple spent on mediation.

February 25th, 2016 – Session #5

  • After getting a value for the house, the spouses talked about other matters regarding the home. Now that the question of how much the house was worth had been answered, a serious disagreement remained about how much of that value belonged to Bill and to Angela; Angela was arguing for a 50/50 split, while Bill believed that he was entitled to a higher percentage due to work he had done on the house, and the increased value that resulted from that work.
  • Angela said that Bill was just making things difficult; that he knew she could buy him out at a 50% split, but couldn’t at any more than that. Bill denied this.

 

  • The mediator asked if they wanted to take a short break; neither one did. Then the mediator asked for more information that might enlighten the discussion. More information was shared, but no agreement on the house was reached.

 

 

  • The mediator brought up other matters, including:  filing taxes, whether/how to share in the case of a tax refund, or an audit; how to handle costs for writing the agreement, review attorneys and the court filing fee.  Angela and Bill reached agreements on these issues relatively easily.  though both were still upset, and Angela especially was concerned about dealing with the house.

 

  • The session ended, both still upset, and with Angela especially concerned about dealing with the house.

 

March 10th, 2016 – Session #6 (the last session)

  • On March 10th, Bill and Angela reached an agreement on the house, and tied up the remaining loose ends. Bill acknowledged the importance of the house not only to Angela, but to the children as well. And since Angela would probably be keeping the house for many years, during which time some expensive repairs were likely (on things that Bill didn’t have the skills to fix, though he was willing), he could come down on the percentage that he was asking for.  Angela expressed appreciation for the work Bill had done on their home, and for his willingness now to accept a lower percentage (than he had demanded earlier).
  • After further discussion, Angela proposed that either: a) Bill walk away with more of the assets than they had already agreed upon; or, b) that Bill take a small percentage of the house upon its eventual sale, which would likely be after their younger child graduated from high school. Angela agreed that she’d have to pay Bill that percentage from some other source of money that she would hopefully have at that time, or sell the house to pay him while incurring the expenses to sell the house.
  • The spouses reviewed their assets and talked further, ultimately deciding that Bill would take a greater share of the assets; an amount that Angela agreed she could live with.

And so, the mediation ended.

As previously mentioned, the “separation agreement” will need to be written. Bill and Angela have been advised by the mediator to each meet with a lawyer to review the separation agreement with them before signing it, which they have agreed to do.  Shortly after that, the separation agreement can be filed with the court.

So what did it all cost?

Mediation Fees:

  • $     50        Consultation
  • $3,300        11 hours @ $300/hr

$3,350        TOTAL

 

Other Expenses:

$1,500        Separation Agreement (needed whether people mediate or not)

  • The fees charged by an attorney to review the separation agreement should be relatively low, as this review is the only job that the lawyer will be doing for the client. There are no court motions, no depositions, no trial (and so no trial preparation), etc.
  • Court filing fee (needed whether people mediate or not)

In mediation (as in litigation), there can be other expenses, such as when spouses decide to hire an expert, such as a financial planner.  But, contrast a mediated divorce with a litigated one, and the difference in cost is often quite dramatic.

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 2 of 4: Sessions on Parenting, Income & Expenses)

In my previous post , I introduced Bill and Angela who had decided to get a divorce.  Angela called and learned more about mediation, and shared the information with Bill.  After further discussion, they decided (Bill, a little reluctantly) to schedule a consultation, at which they got a sense of who the mediator is, and had more of their questions answered.

Here, I continue with both their first and second sessions.

November 10 – Session #1

● With the spouses permission, the mediator turns the discussion to parenting.

● Angela says that she wants ‘full custody’. Bill becomes defensive. They argue for a few minutes.  The mediator listens and considers whether the verbal exchange is constructive, and then raises a question.

● The mediator asks each to answer, “What do you mean when you say ‘custody’?

● The mediator listens and checks that s/he understands what each has said. The mediator then suggests that maybe the question isn’t “Which of you will have custody?”, but rather, “What agreements can you reach so that you can be the kind of parents you want to be to your children?”

● There is further discussion, some of it angry.  The mediator helps the spouses to fully express their concerns, and asks clarifying questions.  The mediator believes that, though Bill is having difficulty really listening to Angela directly at this point, he is able to hear her through the mediator’s restatements of what she is saying.  The focus is forward looking.  Each party acknowledges that the other has an important role to play in the children’s lives; neither wants to ‘take the children’ from the other.  With his fear of ‘losing the children’ alleviated, Bill especially becomes less tense, and the conversation is less strained.

● Bill and Angela agree to talk about parenting arrangements; at least for now, they are willing to leave the legal designations aside.

● Angela and Bill talk about the children: where they attend school, what they enjoy doing, their usual routines, and so forth.

● The mediator helps them to set out different possible parenting plans, which are discussed.

● The parents reach a tentative agreement on a schedule for the children. And, on how decisions involving medical, educational and religious matters will be handled in the future.  (The latter comes easily for them.)

● The mediator gives each spouse a blank form for setting out financial information.  Angela and Bill are both confident that they can fill in the information about their respective incomes and expenses within a week to ten days.  With that in mind they schedule the next session for two weeks later; if either needs more time to complete the income/expense parts of the form, they will let each other and the mediator know, so that the date of the next session can be rescheduled.

● The session ends after two hours, and Bill and Angela each pay $300 of the $600 fee.

 

November 23 – Session #2

● Angela and Bill arrive.  The mediator asks how they and the children are, and whether anything of note has happened since the last session.  They briefly discuss Thanksgiving plans.

● Angela asks a question about property.  The mediator gives the spouses a brief overview of Marital and Separate Property (and Debts), and makes a point of saying that this information is not “legal advice”. For instance, if either/both wants to know what a judge might decide regarding property, they are welcome to contact an attorney to get that advice. Both respond that they don’t see a need; instead, they’ll each meet with a ‘review attorney’ to review the separation agreement before signing it.

● The mediator then begins setting out Bill’s and Angela’s respective income and expenses. This is done using a flip-chart, so that all three of them can see the figures that the spouses supply.

● Bill questions why Angela is paying $400 month for clothes for her and the children. Bill isn’t angry; he just thinks the number is high. In discussing the matter, it turns out that Angela based her calculation on her September credit card statement, which has higher costs than average due to purchasing back to school clothing. Their daughter needed a lot of new thing because of how much she has grown over the past few months. Angela says that before the next session, she will look at her statements over the past year, which she can find on the computer, and take the average of that twelve month period. Bill thinks this is a good idea. The mediator makes a note to come back to this question.

● Angela asks if, since money will be tight, Bill can cut down on his recreational spending. Bill bristles at the suggestion, but looking at where his money goes, decides this is reasonable. In particular, Bill says that he can spend a lot less on sporting events and movies. Bill does a quick calculation, agreeing to reduce this spending by 10% each month, starting this month. He is confident that he will bring it down further, but feels comfortable starting at 10%.  The mediator, noticing Angela’s facial expression, asks if she wants to say something.  She answers that, “Well, I have mixed feelings.  I think Bill could do more here.”  (Bill immediately becomes upset.)   “But,”  she adds, “Bill is willing to commit to this, and says he’ll do more; and I believe he will.  (Turning to Bill)  And maybe it’s a good idea that you start with 10%; that way, you won’t feel deprived.  If you spent less now, you might hate it, and be angry with me, and we’d be worse off.  So, good.  Do the 10% for awhile.  Then, we can talk about it again in month or two.  Can we do that?”  Bill is still annoyed, but he also knows (and feels) that he is being heard by his wife.  He says, ‘Yes’.  They discuss what to do with the money that will be saved. Bill wants to use it to pay down a credit card, and Angela agrees to this.

● In regard to expense and income figures now displayed on the flipchart, the spouses agree that the numbers are pretty accurate.

● Bill raises a concern he has about the parenting agreement. He says that he has what is a minor change in mind that would allow him to spend more time with the children during the summer, if Angela would be ok with it. Bill shares his thought. Angela says that the change would be alright with her, if another small change can be made when it comes to the Thanksgiving holiday break, starting the following year. Bill tells Angela that he is willing; while he likes the Thanksgiving break and doesn’t really want to change the schedule they had agreed to, the change over the summer is a much bigger deal to him, and he thanks Angela for going along with his suggestion.

Next time:  Assets (especially the House) and Debts

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.