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.

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.

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

The loneliness of divorce, especially during the holidays

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

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

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

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

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

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

But of course, the reality is different.

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

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

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

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

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

Adams writes that:

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

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

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

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

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

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

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

Here are some of the results:

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

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

Other findings include:

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

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

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

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

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

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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.)

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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.

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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/

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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.

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A Divorce Mediation Case – Part 3 of 4: Assets (Especially the House) and Debts

In my previous posts, I wrote about The Decision to Try Divorce Mediation and the Consultation (Part 1)  and the Sessions on Parenting, Income & Expenses (Part 2).  I continue here as the mediator assists Angela and Bill in regard to their assets and debts.

January 7th, 2016 – Session #3

  • The next session takes place over a month after the previous one.  Meeting earlier hadn’t been possible, or at least practical.  Bill had a lot of financial information to gather in regard to assets and debts (Angela also had, but less), and then there were the holidays.
  • The mediator asks about what has been happening over the past six weeks. Learning that there haven’t been what either party considers significant changes or problems, the mediator asks Angela about the clothing expenses discussed at the last session. Angela gives a new (and lower figure), which Bill accepts as accurate.
  • With income and expenses taken care of, the mediator works with the couple on their assets, again writing the figures on a flipchart. Angela and Bill both say that the numbers are correct. They quickly come to agreement on how to deal with the bank accounts, retirement money and other investments. There is a small dispute over the cars they own, which the couple quickly resolves. The big issue is the house. Angela would like to keep it, but buying out Bill may not be possible. Bill says that Angela can have the house, but she’d need to pay him a fair price. There is some discussion regarding the house. The mediator asks whether Angela has checked into getting a mortgage. Angela says she hasn’t, and Bill says that since a buy-out may not even be possible, maybe it would be best to go on to the next issue; Angela can do some investigating, and then they can come back to the house question. Angela says that is fine.
  • Having reviewed the asset information, and having reached many tentative agreements regarding their assets, Angela says that she wants to continue with the session, but only for another fifteen minutes, as she has to pick up their daughter from a friend’s house. Bill agrees and over the next quarter of an hour, the mediator begins helping them share the numbers on debts/liabilities.

January 28th, 2016 – Session #4

  • The spouses arrive.  They continue sharing information on debts, and then review it with the mediator.
  • They reach a decision on how to handle the credit cards, the biggest debt aside from the mortgage on the house. They agree on several other debt-related issues as well.
  • Angela begins to talk about the house, saying that she would be able to get a mortgage. Discussion continues on the house, when a disagreement arises concerning the value of the house. Two disagreements, actually. One dealing with the actual value of the house – the fair market value; the other with what percentage of that value should go to Bill; Angela had assumed that they each had an equal share, but now Bill is asking for more.  Angela’s surprise quickly turns to anger.  The mediator intervenes when it becomes clear that a productive conversation about the  matter isn’t possible at this times.  He helps the spouses turn their attention to finding out the house’s actual value, which both agree is necessary.  After a lengthy and somewhat heated discussion, Bill and Angela agree on how to have the house valued, in a manner that they can both accept.
  • The spouses say they would like to talk about child support. They’ve managed to discuss this on their own and have come up with a plan. The mediator says that this is good news, and asks for the details. The mediator also tells them about the Child Support Guidelines; that NYS requires parents to learn what amount of child support the guidelines would require; even if the parents decide not to follow the guidelines. Angela and Bill share their proposal. They learn from the mediator about the guidelines and decide that their own agreement is better for their family.

Next time:  A Divorce Mediation Case – Part 4 of 4:  Agreements Reached & Reviewing the Costs

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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

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