Archive: Mediation Articles

WHY YOU SHOULD CONSIDER MEDIATING YOUR DIVORCE

Why consider divorce mediation? Because the stress of divorce temporarily decreases a person’s I.Q. by as much as 25% and the result can last until approximately 1 ½ years after the divorce is final. (Source: American Journal of Family Law, Volume 27, Number 4, Winter 2014).
Mediation is far less stressful than divorce litigation. Imagine not having the stress of being adversaries in a courtroom, preparing for court, taking time off from work to attend court, and you get the idea.
In addition to their mediator, parties may choose to use third party neutrals, such as family counselors, who can assist parents in creating parenting plans and dealing with parenting issues. Financial experts and accountants can provided much needed guidance when two parties must live on one income, at least temporarily.
Mediating your divorce doesn’t guarantee that you will won’t lose a few I.Q. points, but it will substantially reduce the stress and expense of litigation.

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ALTERNATIVES TO DIVORCE LITIGATION

One of the biggest financial burdens of divorce is litigation. However, how do you avoid litigation, but still protect yourself? One relatively new option is called “COLLABORATIVE DIVORCE.” The collaborative divorce model requires the parties to make a commitment not to litigate. Each party is represented by an attorney, who is their advocate throughout the process. The parties may also hire neutral financial advisors and therapists, to deal with matters such as income available for support, tax issues and custody of minor children. However, all the professionals must commit to disqualify themselves if a client reneges on collaborative divorce. Collaborative divorce won’t guarantee you’ll stay out of court, but it may allow you to resolve important parts of your case, such as property division and custody of your children without litigation. Be advised: Not all family law attorneys have been trained in the collaborative divorce model. Attorneys who are unable to transition from a litigation stance and personality are ill suited for collaborative divorce.

Before starting collaborative divorce, ask your attorney if they have obtained formal continuing legal education in the collaborative model and insist that your spouse’s attorney has done so as well. Because collaborative divorce involves both parties having their own legal representation, this model differs from MEDIATION, which involves a neutral third-party to help spouses reach an agreement. I often tell my mediation clients that the role of the mediator is to help the parties find the road to an agreement, or if the parties are stuck, then the role of the mediator is to build the road to an agreement. However, the mediator only has the power to empower the parties. The mediator has no power to force an agreement. Mediation is typically the least expensive method of dissolving a marriage. It may cost only a few thousand dollars.

Before considering mediation, spouses need to ask themselves how much their time is worth and whether they are willing to work together in the mediation process. The parties may have attorneys assist them during the mediation process. I call this hiring an “attorney coach.” Even if you don’t hire an “attorney coach,” at the end of the mediation process you’ll still have the opportunity to have an independent attorney of your choice review all the paperwork before you sign your agreement. Either collaborative divorce or mediation can be a smart choice for couples who don’t want a significant portion of their hard earned money and/or savings being spent on litigation.

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21st Century Divorce

     If you are getting divorced in the 21st century, why would you rely on 20th century thinking?  Televisions shows of the last century, such as “L.A. Law,”  presented a picture of litigation that was both dramatic and appealing.  An entire generation of audiences became convinced that the legal process what just like television—your case could be neatly wrapped up in a one hour episode.  Sadly, the truth is far different, especially when parties decided to end their marriage through litigation.  The “average” litigated divorce in Los Angeles County takes about 2 years and will cost at least $50,000.00, probably more.  If you have that kind of money and want to spend it, go ahead.  After all, it is your money.  However, I submit that you are giving in to 20th century thinking.

     Divorce mediation should be your first step in the 21st century.  A trained and experienced family law mediator can make your divorce less emotionally painful and certainly much less expensive than litigation.  There is nothing wrong about saving money.  Ask yourself this question: Do you want to spend tens of thousands of dollars on attorneys and expert witnesses, such as custody evaluators and forensic accountants, or would you rather spend that money on yourself and/or your children’s futures, such as their college education?  Most middle and upper middle class families do not have the money for both, and at the end of a long and expensive litigated divorce they are not only emotionally spent, they are also financially wrecked.

     Of course, not every case is suitable for mediation.  A marriage which includes a history of domestic violence or recent domestic violence, drug and/or alcohol abuse and psychological disorders are problematic for mediation at best.  Fortunately, these types of cases are the distinct minority.  The overwhelming number of divorces involve people who simply do not get along anymore and want out.  We even have a word for this in California: “Irreconcilable Differences,” which underscores our State’s no-fault divorce law. 

      Couples in mediation may be angry and/or disappointed, but these emotions are not insurmountable obstacles to reaching a mediated agreement.  When appropriate and needed, I will suggest the parties include counseling as part of the mediation process.  The counselor will assist the mediator in acting as a third party neutral to help facility an agreement, usually in issues regarding custody and parenting.

     Like it or not, we are living in the 21st century.  Mediation should be the first choice of divorcing couples in this new century, and 20th century thinking about divorce should be left in the past, where it belongs.

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FAQs ABOUT FAMILY LAW MEDIATION

What is Family Law Mediation?

 Mediation is a process where parties work with a trained family law mediator to resolve their issues rather than litigate those issues in court.  It involves confidential meetings with a trained family law mediator who acts as a neutral to assist and empower the parties to resolve issues in dispute.

How does the process work?

 Initially, I conduct an “introduction to mediation” session with both parties where I explain the mediation process and answer any questions about the mediation process.  This “introduction” is non-substantive and only deals with the process of mediation.  Specific issues are addressed in mediation. 

What is your training and background as a family law mediator?

 I have taken more than 120 hours of both basic and advanced mediation training, which includes 40 hours of training in collaborative divorce.  In addition, as a licensed attorney, I also practice law at the courthouse.  This gives me a perspective of how family law judges deal with issues that often come up in mediation, which I share with the parties when applicable. 

Family Law Mediation is Confidential.

 Whatever is said in mediation is confidential and can never be used in litigation.  However, in litigation everything becomes part of the public record, even matters that you might not want to become public.  Most mediation is successful and an agreement is reached without the parties ever stepping inside of a courtroom.  However, in the few cases where mediation does not succeed, neither party can force the mediator to testify in the divorce case. 

Can I still have an attorney if I choose mediation?

 Yes.  You and your spouse can both have attorneys during the mediation process.  Sometimes parties feel more comfortable having an attorney they can contact before and/or after each mediation session to ask legal advice.  I allow attorneys to be present during mediation sessions, but only as long as both parties have attorneys.  I do not allow one party to have their attorney present and the other party to be without an attorney during mediation sessions.

What if I decided I don’t want to mediate anymore?

 Family law mediation is a completely voluntary process.  You cannot be forced to continue mediation if you feel it is no longer working for you.

Do we have to go to Court if we reach an agreement?

 No.  If you reach an agreement, the mediator will write up your agreement and file it with the Court.  You will never see the inside of the courthouse.     
How can I be sure the mediator won’t take sides?

 It is normal for people going through a divorce to be defensive, suspicious, and sometimes even a little paranoid.  However, in order for mediation to work, the mediator must be neutral.  This does not mean that the mediator must be passive.  It is fair for a mediator to tell a party that the other party is being reasonable.  This is because too often, parties going through a divorce don’t actually hear each other.  As one wise mediator said, “listening isn’t the same thing as obeying.”  The neutral mediator asks that both parties listen to each other and understand what is being said, before moving on to exploring resolutions to problems.
What if I don’t want to mediate, but I don’t want to litigate?  Are there other choices?

 Yes.  There is a relatively new process called Collaborative Divorce.  In Collaborative Divorce, both parties have attorneys but they have pledged not to litigate their divorce.  If either party decides to litigate, the attorneys must disqualify themselves.

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THE JOB OF THE MEDIATOR – DEFINED

“The job of the mediator is to either find the road or make the road.”

Mediators “seek to create a solution that saves time, saves money and shortens or does away with litigation.”

 The words of former NY Gov. Mario Cumo, as quoted in the Wall Street Journal on March 3, 2011.

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HOW TO COMMUNICATE WITH YOUR SPOUSE IN DIVORCE MEDIATION, PART ONE.

DROP THE DRAMA.  Do not discuss the past, unless it is pertinent and directly relates to a present issue.  As the late great Washington Redskins football coach George Allen said, “the future is now.”  This may be easier said than done, but you cannot change the past, you can only move forward. Sometimes this will require that you get help from a therapist to deal with anger, grief and other unresolved emotions.  These emotions will get in the way of a negotiated settlement with your spouse.  If both parties are experiencing emotional turmoil, their mediator should suggest hiring a third-party neutral therapist to help them work through any emotional issues that are standing in the way of resolving their divorce and moving forward with their lives.

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ONLY FIVE OR SIX HOURS OF DIVORCE MEDIATION CAN BENEFIT YOUR CHILDREN

     A recent op-ed piece in the New York Times confirms the value of divorce mediation for families with children.  Stephanie Coontz, a professor of history at Evergreen State College in Olympia, Washington, wrote about the value of mediated divorce.  Professor Coontz cited a 12 year study of divorcing couples randomly assigned to either mediation or litigation. The study was conducted by Psychologist Robert Emery at the University of Virginia.  Dr. Emery and his colleagues found “that as little as five to six hours of mediation had powerful and long-term effects in reducing the kinds of parental conflict that produced the worst outcomes for children.   Parents who took part in mediation settle their disputes in half the time of parents who use litigation; they were also much more likely to consult with each other after the divorce about children’s discipline, moral training, school performance and vacation plans.”    This study is yet another reason why divorcing parents should choose mediation over litigation whenever possible.

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OVERCOMING THE PROBLEM OF VALUING A SMALL BUSINESS IN MEDIATION

     Cases where one party is self-employed can present a special challenge in divorce mediation.  This is because a power imbalance often results due to the self-employed party’s knowledge of the small business that they own and operate. The business is community property because it was started during the marriage, but one spouse may be completely unfamiliar with the business because they were not involved in it during the marriage.  This so-called “out-spouse” may have little or no information about the business other than what the so-called “in-spouse” tells them when it comes time to file state and federal tax returns.   Accordingly, the “out-spouse” will likely distrust any claims by the “in-spouse” that the business is suddenly suffering, even in the midst of a real economic recession. 

     A cost-effective and practical solution to overcoming this problem is for the parties to hire one neutral CPA/forensic accountant to work on the financial issues and prepare a business valuation.   Obviously, this requires the “in-spouse” to cooperate fully and provide all documents requested by the CPA/forensic accountant.   The CPA/forensic accountant can work with both parties and their mediator to come up with financial plans and division of property based on the parties’ realistic financial needs.   The hiring of the CPA/forensic accountant can be without prejudice to either party so neither party is bound to accept the business valuation.  Because the joint CPA/forensic is a neutral he/she can meet with each party individually to explain the business valuation report.    Each party is also free to hire their own CPA/forensic to review the work of the neutral CPA/forensic.  This is still less expensive than both parties hiring thier own CPA/forensic. 

     This approach is especially effective in cases where there is no money to finance litigation.   Once upon a time, parties would use the equity in their homes to hire experts such as CPA/forensic accountants and conduct extensive discovery in an effort to determine the value of a small family business.   Today, with little or no equity in their homes, parties have no “bank” upon which to draw these funds.   However, even where equity or other funds may exist to finance litigation, parties need to ask themselves whether spending all that money will ultimately make sense.

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INTRODUCTION TO FAMILY LAW MEDIATION

     Perhaps you have heard of family law mediation but you are not sure what it is or how it works.  The following is a brief description of the mediation process.

     Mediation involves two parties sitting down with a neutral, experienced family law attorney, who is also trained mediator.  Not all family law attorneys have mediation training, so it is important to find one who has both mediation training and experience.

     Unlike litigation in court, mediation is a private and confidential process. The confidentiality component of mediation prevents the parties from testifying in court about what happened in mediation and/or from calling the mediator as a witness in any court proceeding.  This makes mediation a safe place for parties to freely discuss all of their issues, without fear that what they say will be used against them in court.

     The parties will sit down with their mediator and work to divide up their community property assets and debts and confirm separate property assets.  If the parties have minor children, the mediator will help them work out a timeshare plan for themselves and their children.  The parties will also work with the mediator to determine child support and spousal support (alimony), if any.  This does not have to be a lengthy process, but like Rome, a mediation agreement to end a marriage is not built in one day.

     As a first step, both parties will prepare the required asset, debt and financial disclosure documents.  The parties will list all of their property, debts, income and investment opportunities. Failure to do so can result in severe penalties.  The mediator can assist the parties in this requirement. This is far less expensive then having attorneys conduct formal discovery, such as depositions, interrogatories and demands for production of documents, since parties in mediation will voluntarily provide each other all documents needed for a full and fair disclosure of their property, debts, income and investment opportunities.

     However, the mediator does not represent either party and the parties are free to consult with their own attorneys throughout the mediation process.  Even where parties do not consult with their own attorneys throughout the mediation process, the mediator should encourage both parties to have their final Agreement/Judgment of Dissolution of Marriage reviewed by a consulting attorney before it is signed.

     What happened if parties in mediation disagree about custody of the children?  Instead of litigating in court, they can hire a neutral third party mental health expert—someone with experience in child custody issues—to assist them in resolving a custody dispute.  Parties can also retain a neutral third party expert to help them value a business or personal property, such as antiques, art, jewelry and the like.

     Because both parties usually split the cost of mediation, they both have a financial incentive to make the mediation process work.  Mediation has been shown to be at least two-thirds less expensive than litigation.  Parties who mediate never have to take time off from work to go to court, attend a deposition or work on answering volumes of discovery such as interrogatories.  Unlike the rigid hours of court, mediation hours are flexible and the environment is non-threatening.  You can dress casually and have coffee, water, juice or soft drink with you in mediation.  If your cell phone goes off in mediation, you can answer it. If your cell phone goes off in the courtroom, the bailiff may take it away from you.

     Sometimes parties in mediation will want to talk to the mediator privately.  This is called a “caucus.”  Anything said by a party in a “caucus” is confidential, unless that party permits the mediator to disclose the information to the other party.  Sometimes a party needs to express feelings to a mediator that they currently are unable to express to the other party. Often a mediator can help them frame their feelings or more narrowly focus an issue, which can then more easily be presented to the other party.

     If you and your spouse are serious about resolving your divorce issues, then mediation is the best path to take.  You and your spouse will conserve financial resources, which is no small thing.  Your divorce can be concluded quickly and efficiently because you will avoid the lengthy process of litigation.  If your are still not convinced, ask anyone whose been through the family law litigation process.

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Divorce mediation makes “cents”—especially in tough economic times

There is nothing wrong about choosing to mediate your divorce because it costs less.  In fact, that is a very sensible plan in tough economic times.  Mediation generally costs two thirds less than courthouse litigation.  In my experience, the number of mediation sessions usually range from five to eight, if each session is one hour in length.  Here are just a few of the financial and emotional advantages to mediation:

  • You don’t pay for travel time.  Your attorney will likely bill you for some or all of his/her travel time to and from the courthouse.
  • You don’t pay for waiting.  Your attorney will likely bill you for the time waiting at the courthouse to have your case called and heard by the judge.
  • You save on gasoline because you are not driving to a distant courthouse and you save on parking because it will either be free or your mediator should validate your parking.
  • You control the date and time of your mediation sessions.  You are not bound by the courthouse schedule.  This is a very big advantage because you can often avoid taking time off from work and thereby not lose income or hurt your career.
  • You can pretty much wear what you want.  Most attorney will tell their clients to dress at least business casual when going to court and never to wear jeans.  In mediation, you can wear shorts and flip flops.  Nice in the Summer.
  • There is no stress.  Seriously.  You are not going to be called as a witness.  You are not going to be intimidated by a courthouse full of attorneys or the judge who sits on the bench wearing a black robe, because none of that is present in mediation.
  • You can bring a drink (non alcoholic of course) and/or a snack to mediation.  You cannot eat or drink in the courtroom.
  • You can leave your cell phone on in mediation.  Judges can and will confiscate a cell phone that rings in their courtroom.

The list of advantages to mediation can go on and on, but by now you get the point.

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