Category Archives: Mediation

How Long Would Mediation Take in My Case?

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Elsewhere, I have written about on “Why Mediation Is Faster than Going to Court”.  Here, I want to share information about how long you should expect mediation to take in your case.

As something of a baseline, many spouses complete divorce mediation within three to six months.  Of course, a case may take more time, or less.  But what can you expect?  The answer greatly depends on you and your spouse or partner.  Consider the following factors:

Complexity of the case:  Some cases take longer than others because there are more issues to deal with.  Do you have children, own a home, have investments and so on?  You’ll have more work to do than couples that don’t.  Parents having three children may need more time to discuss and reach agreement on their kids than parents with one.  If a child has special needs, that too may warrant a longer conversation and perhaps the gathering of additional information.  Have a Picasso?  You might want to have that appraised, and scheduling that appointment may take time.  Far more common is meeting with an accountant, financial planner or lawyer.

Communication between you:  Can you and your spouse speak civilly and listen to each other? Or, do you bicker constantly?  It shouldn’t be surprising that couples who communicate fairly well go through the mediation process more quickly than those that don’t.

There are spouses who can even work well together outside of sessions.  If that is you, so much the better; you’ll not only save time, but money as well, as there will be less to mediate about.

Doing the work that’s required outside of sessions:  At a session, did you tell the mediator that you would have that Picasso valued, but just can’t seem to find the time?  Yeah, that will hold things up, the same as if you don’t find out what your home is worth, or gather bank statements and other information that needs to be discussed.

Length of sessions:  If you have the information you need and are ready to discuss it, you can accomplish more in a two-hour session than a one-hour session, allowing for fewer (but longer) sessions overall, and maybe over a shorter period of time.  But making sessions longer only makes sense up to a point.  (Some parties prefer to stop after one hour, and in those cases, that is what we do.)

Even after ninety minutes or the two-hour mark, many people are tired, and it doesn’t help clients to keep going if they aren’t thinking clearly; the same can be said of the mediator.  Marathon sessions, lasting for hours – in which some divorce mediators engage – doesn’t make sense to me, and so I don’t do it.

Your respective schedules:  If you both are available to meet pretty regularly, and without much time between sessions (say, every week or two), the mediation will go quickly.  But there may be a demanding work schedule, perhaps including out-of-town travel.  There are parenting responsibilities that trump everything else.  Holidays and birthdays, school plays and work functions.  Planned vacations and the unexpected broken pipe.   A lot of what can affect the length of the mediation may have nothing to do with your separation or divorce, but rather with the other things going on in your lives.

Conclusion:  Consideration of these factors should give you a good sense of how much time mediation would take in your situation.  Again, if you are like most people, the chances are very good that you would complete the process within three to six months.  But wherever you are on the continuum – or even if you fall outside of it – if you and your spouse or partner are good candidates, you can expect to spend a whole lot less time (and money) in mediation than you would fighting it out in court.

The Costs of Arbitration

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Most of you are familiar with litigation, where parties often have attorneys representing them, and there may be a trial (though most cases ultimately settle).  A judge makes the decisions.  Litigation is usually very expensive, takes a long time (often years), and is harmful to relationships.

In mediation (as I and many mediators practice it), a third party (the mediator) help the parties to communicate and reach agreements that will resolve, or at least manage, their disputes.  Generally, mediation is much faster and less expensive than litigation, and because the parties work together, the relationships between them are often less damaged than if they had gone to court.

Then there is arbitration.  In this process, the arbitrator(s) make the decisions, like a judge would – and some arbitrators are former judges.  Faster than litigation, arbitration is often touted as less expensive as well.  But is it?

On April 30th, 2021, The ADR Times published an article entitled, How Much Does Arbitration Cost?[i]  The article refers to a survey of corporate counsel that “found 51% considered arbitration to be more expensive than litigation” (emphasis added). “[A]nother survey put the number at 39%,” which the article notes “is still quite significant.”

Trained as an arbitrator myself, for attorney-client fee-dispute cases, I was well aware that client expenses for arbitration can be substantial.  Still, these numbers surprised me.  Where do the expenses come from?

As the article states, “Potential costs are:

  1. Filing fees
  2. Hearing fees
  3. Administration fees
  4. Administrative expenses[ii]
  5. Hearing room rental
  6. Arbitrator and/or mediator fees
  7. Discovery costs
  8. Attorneys’ fees

According to the article, “Technically, you don’t need a lawyer to participate in the arbitration. But realistically you do.”[iii]

A few words on ‘Discovery’,[iv]  which refers to both getting information from the other party, and providing it.[v]  “Research shows that discovery accounts for 50% of the cost of litigation, for very little return.” (Emphasis added.)

But what does discovery have to do with arbitration?

The answer:  In arbitration, “Lawyers are agreeing to expand discovery and related motion practice so that arbitrations looks like litigation.”  Quoting Professor Tom Stipanowich, the article says that “arbitration is becoming judicialized.”

You may have no choice as to whether to go to arbitration if you have a dispute; it depends on the contract.[vi]  If you have a say, arbitration is worthy of consideration.  But investigate and consider your options carefully, as arbitration may

___________________________________________________________________

[i] https://www.adrtimes.com/how-much-does-arbitration-cost/?utm_medium=email&utm_campaign=Weekly%20ADR%20Times&utm_content=Weekly %20ADR%20Times+CID_8b3cc4d27cfbf76d3ed1eb588912a22e&utm_source=Campai gn%20Monitor&utm_term=How%20much%20does%20arbitration%20cost

[ii] I am unable to say what the difference is between “Administration fees” and “Administrative expenses,” C. and D above.

[iii] Of course, the type of case, the amount in dispute, and other factors need to be taken into account.  In the attorney-client fee-dispute program, some clients have attorneys representing them, but more do not, in my experience.  That said, more clients might hire attorneys to handle their arbitrations if it were not expensive to do so.

[iv] Part of the reason that discovery is so expensive is that parties, often counseled by their attorneys, make it terribly difficult to get information from the other client.  By contrast, in mediation, parties share information with one another.  Mediation clients can have attorneys, but there is no ‘discovery’ (no depositions, interrogatories, etc.)

[v] A fuller definition – from Law.com – is:

the entire efforts of a party to a lawsuit and his/her/its attorneys to obtain information before trial through demands for production of documents, depositions of parties and potential witnesses, written interrogatories (questions and answers written under oath), written requests for admissions of fact, examination of the scene and the petitions and motions employed to enforce discovery rights. The theory of broad rights of discovery is that all parties will go to trial with as much knowledge as possible and that neither party should be able to keep secrets from the other (except for constitutional protection against self-incrimination). Often much of the fight between the two sides in a suit takes place during the discovery period.

[vi] Many, if not all, credit card companies require arbitration if there is a conflict.  Employment and other contracts may have this requirement as well.

 

Early Neutral Evaluations and Mini Trials – What they Are

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

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

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

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

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

Early Neutral Evaluations

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

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

Mini-trials

Also as set out on the American Bar Association website:

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

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

  1. The timeframe:  As I’ve discussed, New York State will be expanding successful existing ADR programs, and instituting others.  But New York is a big place.  In many parts of the State, it will be months, and maybe years, before ADR programs are fully up and running.  If you bring a case (or have one brought against you) tomorrow, you may or may not be told that your case should be handled – at least initially – through an ADR process.  But a year from today – and more so two and three years from today – the likelihood of your case being dealt with through an ADR process should increase greatly.                                                                                                                                                                                It is possible that in the meantime, parties can request to engage in ADR, and depending on the resources of the courts, the request will be followed.                                                                                                                                                      If the parties were to agree that they wanted to try mediation – discussed elsewhere in many of my articles, on my blog) and on my website generally –  and if they were agreed on a private mediator to use for the process, many judges are willing to allow the mediation – but of course, the court’s permission should be sought, and your lawyer’s advice, if you have an attorney.
  2. The type of case:  The greater use of ADR will mostly be seen in civil cases, as opposed to criminal cases.                                                                                                                                                                                                                      Civil cases primarily dealing with money are more likely to go to an early neutral evaluator or to a mini-trial than other cases.  At a recent meeting I attended on “presumptive ADR” the following example was given.  Paraphrasing, it went like this:

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

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

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

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

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

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

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

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

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

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

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

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

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

What does this mean to parties?

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

The Report notes that:

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

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

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

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

 

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

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

But first, what is ADR?

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

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

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

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

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

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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

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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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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

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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.

 

 

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

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

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

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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.