Mediating Rather than Litigating

In my prior post, The Myth of “Uncontested Divorce”, I introduced the concept of entering into mediation well before a divorce or separation action is filed with the courts. In fact, mediating rather than litigating can be both a cost saving and relationship preserving process before anyone hires a lawyer. I will not reiterate those points again so I encourage you to go back and read that post if you have not already done so.

The process of mediating rather than litigating is simple. Instead of running out and hiring a lawyer right away, one or both spouses run out and find a mediator. The cost savings are instant because the two of you would just be splitting the cost of the mediator if you mediate rather than litigate. There is at least a 90% chance of being ordered into mediation by a Family Court Judge once your divorce action is filed, and then you will be splitting the cost of the mediator AND each party will be paying for their own attorney. That adds hundreds or thousands of dollars to the total expense if you litigate and then mediate.

When you call someone like myself who is both a practicing licensed attorney and a trained, certified family and divorce mediator, you are able to get to the same place that litigation will take you but with less cost and less pain. I am unaware of anyone else in this area offering this, but I do my fees for mediation on a sliding scale based on household income if there are no individual lawyers. Additionally, if agreement is reached on all matters, then I am also able to draft all the proper documents as “scrivener” (scribe) for both parties for a low flat fee. One or both parties can then file the action in a streamlined fashion if they still chose to proceed with divorce.

If a full agreement is not reached when mediating prior to litigating, all is not lost. First, there likelihood of significantly reducing the number of issues in conflict. That means fewer issues to litigate and less cost. Also, you will be able to tell to the court that mediation has already been attempted and so the judge is far less likely to order mediation. So, you will have essentially met one of the standard requirements of the court without paying a lawyer.

The bottom line is that there is tremendous potential in mediating rather than litigating and very little, if any, downside. If you are in the Bluegrass area and wish to engage in the conflict resolution process called mediation, give me a call or shoot me an email.

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The Myth of “Uncontested Divorce”

This post’s title is a bit of an overstatement, and so I want to acknowledge that right at the start. There are a few people who enter into the process of separating or ending a marriage where they are in agreement on all matters. But, my observation time and again is that a divorce involves the tearing apart of two people who have been joined in some way that defies understanding, and that nearly always means conflict. After awhile, an “uncontested divorce” appears mythical. Despite the prevalence of contention when people separate, mediation prior to litigation offers the best chance of minimizing the conflict and the damage.

As a practicing attorney, I have fielded many calls by people asking how much for an “uncontested divorce”. After giving a dollar amount for a truly uncontested divorce, I spend time talking about the dozen different categories covered in the typical separation agreement. Their confidence in an easy, “uncontested” divorce diminishes as they recognize points that have not been discussed and where contention is likely to occur.

I then have to explain the idea of a “refundable retainer” which turns out to be much higher than the uncontested divorce flat fee. Part of that explanation involves hourly billing and the fact that some attorneys inadvertently or purposefully increase the conflict resulting in higher costs. The sad fact is that the single best predictor of the cost of a divorce, in my experience, is whom each party choses as their attorney. 

There is an alternative to this litigator roulette. If both spouses are willing to engage in mediation prior to filing for divorce and perhaps even before retaining a lawyer, they are entering into the most likely scenario of a low-cost and relatively uncontested divorce. They may even emerge on the other side of mediation deciding that they actually are not at that irreconcilable place in their relationship after all. But, they at least experience working through tough issues with relative civility and respect.

In my next post I will give an overview of this “mediation, not litigation” model to arrive at an uncontested divorce.

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MEDIATION is not LITIGATION

Perhaps the most common misunderstanding about mediation is that it is only a part of the litigation process. In fact, many attorneys see it as a necessary nuisance that is commonly court ordered by a judge in a lawsuit before that judge will schedule a trial. This perspective becomes quite apparent in the mediation session when the attorney seems more intent on issuing ultimatums and threatening to just end the session than on getting at the issues and possible resolutions. 

However, mediation is not litigation. Litigation is the formalized process of putting claims for various sorts of relief, usually monetary, before the branch of government authorized to decide who gets what in a dispute. Litigation at its very essence of the adversarial approach of each party trying to power up and win over the other party or parties. They do not use illegal forms of powering up, such as physical violence. Rather, they leverage language in advancing certain facts in a certain way to fit an interpretation of the rules of court or statutory and case law to prevail over their opponent. Mediation is not that.

Litigating is powering up to conquer. By definition there is a winner and a loser on each issue.

Mediation seeks to bring potentially opposing parties together on a relatively even field where they become willing to power down enough to find interests that are either in common or at least not directly adverse. There are few conflicts where the underlying interests of the parties involved are so squarely opposed that there is no convergence; few situations where the line is starkly black versus white. In litigation, people take positions and defend them vehemently. Positions usually are directly opposed. But, in mediation positions are the starting point to find out what the actual interests are that underlie them. Positions may be opposed, but usually interests align at least enough where agreements can be reached.

Mediation is powering down to resolve conflict. By definition, there are either two winners on each issue or the conflict simply continues; there is no losing when mediation is entered into.

Now, one practical implication of realizing that mediation is not litigation is to recognize that mediation can happen well before litigation is initiated or in lieu of ever considering litigation. And, mediation is not resigned to merely address conflicts where some legal issue is at stake; mediation is for any relationship of any nature or magnitude where an impasse has been reach. 

A second implication arising from the realization hat mediation is not litigation is one’s effective approach to mediation. Lawyers (and I can say this since I am one) seem to measure their value to their client in terms of how big a win that can achieve for them. This seems true even when it does not change the level of compensation they will receive. It is rooted in their training as well as other sources which I will not speculate upon. In doing this, though, they often lose sight of what their client truly desires.

There is an adage in the legal field that goes, “When a client says, ‘It isn’t about the money’, well, it is ALWAYS about the money.” I used to believe that as many lawyers I know continue to believe it. However, often, people truly do seek something higher than money and they settle for money because that is all the legal system can really give them. Often, they just want to be heard and for some sort of restoration of relationship. Mediation is that.

 

 

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MEDIATION is not COUNSELING

When a relationship begins to disintegrate, such as that between a husband and wife, they are often encouraged to get into counseling. Absolutely nothing wrong with that suggestion. In fact, I have known many couples who have been helped immensely by counseling. Counseling (also called therapy or psychotherapy) uses various psychological perspectives and tools to help bring about lasting changes in patterns of behavior, including changes in communication. Mediation is not that. There is a place for both counseling and for mediation and they do not serve the same function.

Instead of helping people change their patterns of behavior over time with the hope that those changes will endure (i.e. counseling), mediation seeks to intervene in a single moment of conflict and to move two or more people from division to some degree of unity. There is no intent to change established behavior and communication patterns in a lasting way. There is no weekly session. There is no training and practice in effective habits. However, when a couple experience success in resolving one conflict with help, a side-effect often is the ability to resolve another one without help. Relationships heading towards destruction often are redirected onto a new course through a single intervention in the conflict.

Again, I am an advocate of counseling, but if people have gotten to the point where divorce is filed or even planned, then they are incredibly unlikely to entertain the notion of marital counseling. Even if they do agree to counseling, most sessions are limited to an hour or less per week so it takes a number of sessions before the whole story is unfolded. Many will go to a few sessions, but their level of engagement in the process stops there before counseling even gets its traction. Also, in counseling, there remains the risk that what is said in those sessions could be brought out in court; the counselor could be compelled to testify. Lastly, counseling may give tools to communicate and resolve conflict, but it does not result in a resolution committed to paper that is legally binding.

In contrast to the time limitations and confidentiality limitations of counseling, and in contrast to the absence of any actual, binding agreement, mediation is a forum that exceeds those bounds. A mediation session lasts from two to several hours and can be accomplished over the course of a single day or a few days back to back. Ample time is given for the entire story to unfold and for each party to be heard. The telling of each person’s story as it relates to the issues in dispute clears the way for problem solving to occur. It does not guarantee resolutions of each issue, but it creates the potential for those resolutions better than any other forum. Mediation is not counseling and does not attempt all that counseling promises, but it is the intentional resolution of defined issues of conflict that are then committed to paper as binding agreements.

Do you feel that relationship is beyond the reach of counseling? Are you no longer willing to invest time and hope in therapy sessions? Have you thought an issue was resolved one too many times only for it to unravel leaving you with no way to hold the other person accountable? If any of these are true, it is time to seek the alternative conflict resolution offered by a professional mediator.

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MEDIATION is not ARBITRATION

In a recent conversation I became aware that there remain many misconceptions about mediation. I hope to address few of those in this and the following posts. In this particular conversation with some community leaders, they were surprised that mediation is not the same as submitting your claims to a third-party who decides the outcome for you. They knew it was not the same as going before a judge or jury, but the still understood it as having an outside decision maker. That is not mediation, it is arbitration.

Arbitration has become increasingly popular among businesses. In nearly any contract these days one is likely to find an arbitration clause. The clause essentially binds the parties to attempt to argue any dispute to an approved arbitrator instead of going to court to decide the outcome of the conflict. The purpose is to reduce the costs of litigation by streamlining the process. These clauses almost universally benefit the business who wrote the contract since they choose, in advance, who the arbitrator will be.

In arbitration, the two (or more) parties in dispute prepare their arguments and evidence, present those arguments to the arbiter with supporting documents, and then agree to abide by that arbiter’s decision. Rules of evidence are lax to non-existent and sometimes lawyers are not even involved. However, think about it, these arbiters get their income from cases that come to them from big businesses naming them in the very contracts that the business wrote. How many times might that company lose in an arbitration and still use that arbitrator? So, arbitration is like court-lite and a third party decides the matter. There is a winner and a loser.

Anyway, mediation is not arbitration. The decision makers remain the parties who have the dispute. They either come to an agreement or they do not. Nothing is imposed on them. The mediator guides the process, not the outcome. A good mediator will help the parties to develop unique ideas that address the issues in conflict or help the parties to compromise in ways that benefit everyone. At the end of the day, though, the outcome belongs to the parties that had the dispute, not a third-party. That increases a sense of ownership and satisfaction in the outcome. There are either two winners at the end or, at worst, the conflict simply has not been resolved yet. Mediators are guides, not deciders.

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Litigation Disillusionment

Any family law practitioner who has handled at least a handful of divorces has encountered the situation where the actions of the person they represent confounds them. What often stymies the lawyer is that their client seems determined to spend hundreds or thousands of dollars to secure some item that has a monetary value far less than the cost of litigation. It is the proverbial fight over the $10.00 toaster. To the husband or the wife, this results in mounting tension or frustration towards their attorney because they just do not get it. This is the point where many attorney – client relationships break down and another lawyer is sought. Starting over with a new lawyer is costly so it is worth investigating what is going on in this communication breakdown before parting ways.

In my experience, the issue of the toaster (or whatever item it is) revolves around a deep need for that spouse to be heard. The dissolution of a marriage (legalese for “divorce”) is the legal manifestation of an intensely personal and painful pulling apart of two people that were “joined together” in ways that defy explanation. But, the legal process does not lend itself in any way, shape, or form to addressing that pain. In fact, the actual purpose of a family court or role of a judge in a divorce is the expeditious resolution of conflict that the parties themselves have been unable to resolve.

This desire to be heard motivates the process imperceptibly but pervasively. Often, the husband or the wife holds on to the notion that if they just get in front of the judge and are able to speak their mind, then they will be satisfied with the outcome even if the judge rules against them. This may actually be true …. if getting in front of the judge actually allowed one to speak their mind.

However, the litigation process itself prevents the party from fully speaking expressing where they are coming from. Even though many divorce attorneys tend to be a little lax with the rules of evidence in divorce cases, there are still objections that inevitably halt testimony. There are objections to hearsay and objections to relevance and on and on. Each objection interrupts the story – their story – the deeply personal story that they trying to share with the judge. Things that matter to the person testifying cannot be said. They leave the stand with some degree of dissatisfaction because they were not heard – not fully. They step down plagued with this vague sense of, “If only I’d been allowed to say this or that, the judge would have understood.”

Not only do the rules of evidence bar the wife or the husband from speaking their mind, but the demands of many, many cases on the judge’s docket constrains the time available. Judges, even if they want to, simply cannot listen to everything. They hear enough for them to make a decision on a particular topic and then they must move the matter forward so the next set of litigants has a window of time to put forth their best arguments.

It is an axiom among divorce lawyers that, at some point or another in the court process, their client will be dissatisfied with them and the outcome. I believe this is largely because their client never felt heard. However, there is an answer to this dilemma; this tension between the need of a person to tell their story and the constraints of litigation. The alternate conflict resolution option of mediation can be, if done well, the arena where both parties walk away having been heard. I plan to switch gears and devote this blog to the topic of conflict and dispute resolution, otherwise known as mediation. Hope you join me!

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Justice Remains Elusive

I began this blog years ago with this idea that people go to court seeking justice, but find this pursuit to be daunting. Justice was elusive to a vast number of litigants. This was especially true in the family law arenas: divorce, custody, child support, timesharing, grandparent visiataion, and neglect & abuse proceedings. A decade has past and, based on my experience with more litigants than I can count, justice remains elusive.

That is why I am excited to take my law degree plus my courtroom and litigation experience and combine it with my prior career in the human services field to offer mediation services with an emphasis on family conflict resolution. I have seen the incredible value of mediation that is well done and I am convinced that mediation is the best hope for those in litigation or in conflict outside the courts to find what they actually seek.

Mediation has worked effectively in all conflict scenarios where two or more parties have reached an impasse: couples, teens and parents, students with students, students and teachers, business to business, co-workers, employers and employees, roommates, and the list goes on. I am so passionate about this service and the potential it offers to anyone who are in conflict that I offer an affordable fee scale to qualifying parties. Call or email me to learn more – and don’t wait until you are actually in a lawsuit; mediation is the best way to avoid the expense of litigation.

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