Friday, February 22, 2013

ADRNC Salute to Bay Area Mediators

I recently had the pleasure of working with the Association for Dispute Resolution of Northern California (ADRNC) in creating their Public Service Announcement called "The Salute to Bay Area Mediators." This Public Service Announcement was broadcast at the September 22, 2012 SF Giants vs. Padres baseball game in San Francisco where Bay Area mediators were honored for their contributions to the community. The purpose of the PSA was to help spread the word about the benefits of mediating any type of conflict that might arise (i.e., between neighbors, employers, families, etc.) and how to find local mediators. Here is the short 30-second PSA (you won't see me, but that's my voice as the narrator). The link to that PSA is here: ADRNC-Salute-PSA.

More Posts Coming Soon in 2013.....

After a bit of a hiatus in my blogging endeavors, I've decided to start posting more articles again. Of course, since mediation is a confidential process, much of what happens in my daily work life, (although very interesting!), cannot be written about here. So that has always been a challenge in having a mediation blog. But I think I can start answering some general and frequently asked questions here and hopefully help some of you to decide whether mediation is a good fit for your situation. Stay tuned.....

Wednesday, October 12, 2011

Support for Men in Divorce

A while back, I posted a link to a support group which focuses on helping women through the difficult transition of divorce or separation (although they also work with men). This is my belated follow up link for a support group which focuses on helping men through this same difficult transition (although he also works with women).

Larry O'Connor provides group support for men going through divorce or separation and also provides individual counseling for men as well as women. (See info here) He has a positive, insightful and often humorous approach that works very well for many individuals and I have received positive feedback from individuals who have worked with Larry.

What I like about both support groups (Larry's support for men and Laura and Judy's Divorce Recovery Coaching for women which I posted on previously) is that they are designed to offer help and support for the unique needs and issues of each gender but they also offer support for the other gender as well. Many groups or counselors can become hostile to the other gender and this is not something I see with either of these providers. This is more closely alligned with my work as a neutral mediator and is one of the reasons I feel comfortable recommending both providers as potential resources.

However, keep in mind that getting the right kind of support during this time is not an exact science. It is important to figure out what your options are: read what you can on the Internet, make some phone calls to get a sense of the services available by each provider (their style, group approach and personality) and choose a support option that feels like it's the best fit for you.

It can be like finding a good divorce mediator or a good divorce attorney. Once you get over the hurdle of finding someone who is knowledgeable and experienced, then you need to make sure it's a good personality fit. Coaches, therapists/counselors, attorneys and mediators all understand this is a painful and challenging time in your lives; finding the right kind of support for your specific needs and situation can help to make this an easier transition and can even lead to better results in your case by ensuring you are thinking clearly and making good long term decisions.

Paula M. Lawhon

Tuesday, March 08, 2011

Mediation Is Not Like A Court Hearing; Creating Peace


There seems to be quite a bit of misinformation about mediation out there despite the prevalance of mediation in many legal and non-legal arenas. One of the ones that always surprises me is when people think of mediation as being similar to a court hearing when the fact is that it is purposefully not at all like a court hearing. It's designed to be a peaceful process that promotes understanding and fair outcomes.

In mediation, the individuals who need help resolving their issues or disputes are able to sit together at the same table to have an informal discussion with a professional who is trained (and hopefully skilled) in helping to keep the individuals on track to reach a complete agreement. Everyone is involved in talking, discussing the issues and explaining where they're coming from and why. The conversation is with the mediator and with the other individual. There is not a time limit for anyone to say what needs to be said (a court hearing is usually limited to a set amount of time - sometimes only 20 minutes!!) and the mediator is not there to make decisions or orders that might not work for one or both individuals. Instead, the mediator facilitates productive conversations that are often not possible when the individuals try to have these discussions themselves and which are even less likely to happen if the case goes to court. The goal in mediation is a settlement that both individuals feel works for them and that they created themselves. The result is a binding and enforceable written agreement between the individuals which allows them to complete their case without having to go to court or incur more fees for litigation.

On the other hand, in court hearings the parties do not engage directly with each other even when they might want to (litigating parties often realize at some point in the process that they might be able to get a better, faster, cheaper resolution if they could just sit down and talk for a while!). Instead, the attorneys take positions (sometimes reasonable, sometimes not) and make arguments to the judge while the parties themselves sit by as spectators in their own important matter. These individuals often feel a bit muzzled since they're generally not allowed to talk unless they are put on the witness stand and sworn in. And, as much as they might scribble notes to their attorneys, the attorney knows there is very limited time to get a whole lot of information to the judge before the judge makes the decision for the parties. There is often not a lot of room for creativity in the orders by the judge. The judge (and sometimes a jury) is there to weigh the facts and impose decisions often after years of litigation and attorney's fees.

So, when I hear that certain individuals do not want to engage a mediator to resolve major or ongoing disputes because mediation "sounds like a court hearing," it is obvious to me that the right information is not making it's way to everyone.

The article that prompted me to write this post (here) involves the Farmington, New Mexico Community Relations Commission which the mayor is asking to "consider moving toward professional mediation to handle complaints, saying the current process has proved ineffective." The Commission has indicated it is open to considering changing the process for handling residents' complaints about discrimination which appears to involve members of the Navajo Nation.

One commissioner expressed reservations about using mediation, saying "Navajos will not participate if the process sounds like a court hearing. 'When you mention that, Navajos do not want to come forth, he said." However, another commissioner said she often uses lawyers in mediations with the Better Business Bureau, indicating "Both sides are heard," she said. "I honestly feel it's a very fair way."

While I certainly don't profess to speak for any individual or native tribe, it seems that if there was a better understanding of what mediation is, that the individuals whose complaints of discrimination are not being heard or understood would have a much better chance of having that happen in mediation, which would be far more consistent with the traditions of peacemaking that we associate with native tribes and cultures.

Thursday, December 30, 2010

UK Promoting Divorce Mediation

The benefits of divorce mediation are clearly being realized not only in the San Francisco Bay Area but around the world as well. Some courts in England recognize that divorce mediation is not only a better solution for families ("quicker, cheaper, and less stressful") but also for taxpayers funding ongoing litigation and those courts are doing everything possible to encourage the use of mediation. Here is an article - short and to the point - from the Worcester News.

Mediation is benefit to divorce
LEGAL aid could be withdrawn for couples seeking advice about divorce as the Government promotes the alternative benefits of family mediation.

The coalition is committed to increasing the use of mediation as quicker, cheaper, and less stressful than contested court proceedings and believes the costs of routine divorce, including disputes about the arrangements for children, should no longer be met by the taxpayer.

Mediation gives people a sense of control while minimising the financial and emotional cost.

Stephanie Leibbrandt, of Family Mediation Worcestershire, said: “We are ready for this long overdue shift.

Anyone needing information to call us on 01905 610925 or go to fmw.org.uk

Monday, November 22, 2010

Peaceful Divorce Options

In my 11 years of practicing law, I have noticed that attitudes and approaches to litigation and divorce vary from county to county. I have seen couples who wish to have an amicable and peaceful divorce be thwarted in those efforts because many of the attorneys in their area are holding strong and fast to traditional methods of positional and combative litigation.

Although I am a full-time divorce mediator in San Francisco, many of my clients are not from San Francisco but choose to come here because they are unable to find good collaborative or mediating attorneys where they live (even though we're filing their cases in Contra Costa, Solano, San Mateo, Alameda, Marin, etc.).

That's not to say there aren't mediating and collaborative attorneys in counties other than San Francisco; there are, but I am still pleased to learn about more attorneys who are using more peaceful approaches to divorces. Divorce mediation Attorney Michele McInaney is in Walnut Creek (Northern California) and seems to have the right attitude according to this article in the San Francisco Chronicle. We definitely need more collaborative attorneys - those who have been trained in problem solving without the threat of litigation - so I'll keep an eye out for more.

Friday, August 20, 2010

Divorce Recovery Coaching


As a divorce mediator, my clients come to me to help guide them through a very difficult time of their lives. In addition to managing the court filings and financial disclosures and helping couples reach creative agreements together and putting all of that into writing, I am also able to share with my clients the wealth of resources I have gathered over my years in practice.

Individuals going through a divorce or separation often face challenges they have never had to deal with before. Sometimes this means dealing with and understanding their finances or investments for the first time in decades. Sometimes it's needing to find a good insurance broker to find an individual health insurance plan after the divorce, or a mortgage broker to help figure out re-finance options for the family home. Other times it's a financial advisor, a tax professional, a contractor, an estate planning or immigration attorney, a therapist, a co-parenting counselor, etc...

One of the resources I rely on is Divorce Recovery Coaching for Women. Laura and Judy have offices in the Flood Building on Market & Powell in the same building as my mediation offices. And, after learning more about their approach and philosophy directly, I have been recommending this coaching to any woman going through a difficult break up.

Here is information from their website. (http://www.divorcerecoverycoaching.com/)

“If you’re feeling lost, alone & afraid from a painful divorce or break-up… We’ll show you how to feel better NOW and start rebuilding your life…”

Are you hurting? Is your heart breaking?
Are anger or guilt eating you up inside?
Are you scared about your financial future?
Do you feel insecure about which steps to take next?
Are you feeling the pain of divorce, even years later?
Do you want to decrease the negative effects of divorce on your children?


Our supportive programs are designed for women just like you. We guide you step-by-step to quickly relieve your emotional pain so you can move through this time with clarity and confidence.

Next post, I'll let you know about similar resources for men's divorce recovery!

Wednesday, May 12, 2010

When there's not enough time in the day...


....something needs to give. Having not posted an article since December, it's safe to assume that posting blog articles has been one of the things I had to put aside in order to meet all my other obligations.

I realize I am far from alone in this dilemma; we all have too much to do and not enough hours in the day to get it all done. And good luck trying to have a balanced life when children, added work responsibilities and other demands eat up what's left of our time!

I feel a huge sense of responsibility for the cases I work on with my clients. I like to think that is one of the things that sets me apart from some other attorneys or mediators since I take my work (but not myself!) very seriously and want to give 100% to each and every client I come into contact with. And I want to provide information to others (via this blog, for example) who are not sure where to start whether they are planning to be married and want guidance with a mediated premarital agreement or whether they are trying to find a neutral mediator to help get them through the difficulty of a divorce or custody matter.

And although I'd like to post articles more frequently, I have to weigh what needs to be done and how much time I have in which to accomplish it. I generally decide that with the limited time I have when I'm not in mediations (with two in one day, there's not much left of me!), I need to use that time to get thoughtful and comprehensive agreements out to clients and complete their cases as promised.
Since the purpose I have in working as a full-time mediator is to help as many people as I can with the highest level of quality and professionalism, I have to resign myself to the fact that I just can't post as much as I'd like. I'd better get back to work now, but I will continue to post when possible!

Monday, December 28, 2009

Timing of Divorce Filings & Finalizing at Year End


At the end of the year, many family law attorneys are busier than usual, often working around the clock to help their clients finalize their divorces before the end of the year. As a divorce mediator, this is particularly true because the couple is working together and are making decisions together - including when to finalize their divorce.
I typically see just a few reasons a couple would want to finalize their divorce by December 31. And, in the last few years, the San Francisco court has required that judgment documents be submitted by the end of November in order to have a 2009 divorce date. This year, they are allowing filings up until December 31, which has given a little more flexibility for divorcing couples to have their cases finalized in 2009. Here are the reasons we work to get our clients cases finalized by year end:

Taxes: A couples' tax filing status is determined by their marital status on the last day of the tax year. This means that if a divorcing couple is divorced by December 31they will not be filing "married, joint" or "married, separate" but will be filing as a single individual or as head of household. How this impacts an individual or couple will be based on many things (i.e., income, losses, deductions, etc.) but a change in tax filing status can often mean a difference of thousands of dollars.

Symbolic/Emotional: There are many steps in the divorce process which are important legally or financially and others that are important on a more emotional level. It is often the case that individuals who have done the hard work to get through the details of their divorce settlement and co-parenting agreement throughout the year would like to put an end to that chapter in their lives and starting the new year as a single individual is one way an individual can make a fresh start with a clean slate for the new year.

Health Insurance Benefits: While not necessarily tied to the end of the year, determining when the divorce is going to be final will have an impact on when a spouse is no longer eligible to remain covered under the health insurance policies of his/her spouse's policies. Knowing how health benefits are tied to marital status and knowing whether and how to extend the duration of health benefits can be useful in a divorce settlement.

Re-financing: Again, this is not tied to the end of year, but when a refinance of property is a key component of a divorce settlement, there are timing issues which we need to be aware of so that the fully signed Marital Settlement Agreement can be provided to the bank to confirm the agreements affecting the property. The banks are not always sure of the exact information they need, but having worked with many, many couples who are refinancing their houses to buy out the other spouse's ownership interest, most banks need the fully signed Marital Settlement Agreement, which is the document that gets filed with the court after agreements have been reached on all custody, support and financial division issues.

Every case is unique, with a wide variety of reasons for both the begining and the end of the marriage. The reasons for finalizing at a certain time are usually limited to taxes, emotions, health benefits or financing options, all of which are related to the separation of the financial entanglements that come with marriage and are sorted through in cases of divorce.

Monday, October 26, 2009

Mediators With "Issues"

I was recently asked how mediators are able to keep their own "issues" out of the mediation and my answer is that I don't think they can. If a mediator is impatient or demanding or self-absorbed, how would that not come through and influence the mediation process? On the other hand, if a mediator is naturally a good and patient listener who is intuitive and can easily sympathize with many different types of people in various circumstances, that will also come into play in the mediation.

People who are in a mediation, regardless of the type of case being mediated, need to feel that they are being heard, that their needs and interests are being acknowledged and factored into the final resulting settlement. If a mediating party feels like the mediator is impatient, cuts him/her off or is dismissive of something that was raised as a concern, how is that party going to feel like the process worked to meet his/her goals?

When parties agree to mediate, they still want to feel like someone heard their side of the story and gets where they're coming from. I don't believe that mediators can "fake it" and have a client feel like they're understood if the mediator doesn't truly care or understand that party's point of view. If we have biases or judgments that prevent us from getting below the surface and figuring out where the client is coming from, and helping to communicate that to the other party, I think we are not doing our best work.

As mediators, just as in any profession, our personal history, background, personality and yes, "issues," influence our work. But maybe more so as mediators than in certain other professions, we need to continue to do work on ourselves to be the best that we can be as mediators dealing with sensitive disputes.

As we work to balance power dynamics, create a safe and trusting environment for open discussions and work to ensure that the goals and concerns of our clients are met, we need to be able to be present, focused and aware of unspoken concerns or hints and clues about what is going on below the surface of the conversation. If we are consumed by our own "issues" or biases, or unaware of (or unconcerned about) the difficulty of the situation for our clients, our clients will not be as satisfied with the process because they will not feel "heard" because, in fact, they will not have been.

Monday, October 19, 2009

"Divorce is no longer one size fits all"

The San Diego News Network is featuring a Family Law blog series sponsored by San Diego family lawyer Garrison "Bud" Klueck which includes in Part I of the series:
"A good way to remember the various options that divorcing couples have is summarized in a little poem:

Litigation, mediation or collaborative law,
Divorce is no longer, one size fits all."


Part II of the series discusses various models of divorce mediation and is worth reading to understand the different ways in which attorneys, mediators and other professionals might be involved in mediation. I have included an excerpt below or click here for the full article.

Mediation is probably the most popular form of alternative dispute resolution or “ADR.” Mediation uses a neutral that assists the parties in coming to resolution of whatever disputes are between them. But unlike other neutrals, like judges or arbitrators, the mediator does not make the decision. The parties make the decision. The method, therefore, is very empowering to the people who use it. The mediator uses his or her skills, training and experience to assist the parties in coming to a productive resolution of their disputes.

In family law, there are four “models of mediation.” There is a “three-person model,” “a five-person model,” “a three-person plus model” and a “four-person model.”
The three-person model is the simplest and most popular. In the room are just the mediator/neutral and the two parties. Because the mediator is a neutral, potentially that neutral’s office personnel can prepare all the paperwork or required documents for both sides. Technically, both husband and wife or domestic partners will remain listed as being “in pro per” or self-represented on the documents going to the court. The neutral mediator does not represent either side.Read more: http://www.sdnn.com/sandiego/2009-10-14/blog/sponsored-blogs/methods-of-divorce-part-2-mediation#ixzz0UPd1MFPl

Tuesday, September 22, 2009

Divorce Mediation Interview on the Rob Black Show


I had the pleasure of being invited to join the Rob Black radio show this morning on www.talk910.com to discuss divorce mediation. Rob has a great radio show on money, finances and investments and also has a daily show on Kron TV.

Here is a link to the podcast so you can hear the show: Link.

Or go to the website and select "Listen" to today's podcast.

Here's more information about Rob's shows so you can tune in any time:

Rob Black & Your Money
Channel 4 KRON TV

"Rob Black and Your Money" is on daily at 4:00 pm on Channel 4 KRON in San Francisco. Rob is always on the hunt for financial news you can use. Audiences gain valuable information and education about what is happening in the financial world, and viewers can utilize this education to make money. To tap directly into Rob's Wall Street expertise, watch the show and try to figure out why Rob selected the stories that he did. He tries hard to make sure that every story has a lesson in it so that you can become better investors. Rob will take your calls on the news if you call 800-440-4884.


The Rob Black Show
KNEW 910 AM

Flamboyant, irreverent, over-the-top, and smart as a whip, Rob Black personifies fortune-making spirit of today's marketplace. Combining his uncanny ability to predict market winners & losers with his groundbreaking use of the callers information. Black combines market savvy, an eagle eye for brand positioning, and a unique style of fired-up energy to put audiences of the on the road to financial success. To tap directly into Rob's Wall Street expertise, give him a call on the show hotline. Rob wants to speak with you! Call toll free at 1-800-345-KNEW (5639). You can hear the show live from 10 a.m. to Noon on 910AM KNEW. You can hear the show anywhere in America via the live stream at www.910KNEW.com

Mediation: the least expensive divorce option

From the Ridgefield Press in Connecticut, family law attorney, Karen Stansbury, switched from 20 years of litigation to providing mediation services for family and civil disputes. Here are excerpts from the article

“I will no longer practice family litigation — I’ve done it for 20 years and I do not think it works,” she said. “In the traditional litigation process, parties give up control of their lives and suddenly a team of total strangers has its nose in their personal affairs and is telling them what to do. It is a truly invasive and disgusting experience.”

In 2007, she said, the Boston Law Collaborative found that mediation was by far the least expensive divorce option, with a median cost of $6,600, compared to $19,723 for a collaborative divorce, $26,830 for settlements negotiated by rival lawyers, and $77,746 for full-scale litigation.

“The key to successful mediation is the willingness of each party to listen to the other party and to understand their different perspectives and concerns,” Ms. Stansbury said. “No one ‘wins’ in mediation. The goal is to reach an agreement that is based on fully informed decisions.”

Thursday, August 20, 2009

Mediation in Paradise

There's a part of me that doesn't want to believe there are conflicts in such idyllic places as Maui. Granted, I haven't been there in many years, but my memory (or maybe I imagined this) is of a slower, more peaceful and enjoyable way of life which exists in a lush island paradise (maybe I should go back to confirm this...). I prefer to think of it that way rather than to think there are workplace conflicts in Maui which are not easily resolved with a handshake and a smile.

But the truth is there are conflicts everywhere, even in good companies, in healthy families, in happy relationships, and yes, even in island paradises. And, when those conflicts reach a certain level, or involve legal rights and obligations, those conflicts may require the assistance of a skilled mediator to provide neutral, unbiased guidance and structure for productive discussions to help the disputants resolve their disagreements.

According to the Maui News, there are, in fact, conflicts in Maui (gasp!). Luckily, the "Mediation Services of Maui" has been granted some money for its conflict resolution program in the workplace. Here's what they have to say about the purpose of mediation in the workplace:

"In announcing the grant, Mediation Services noted that unresolved conflicts affect profitability because they can cause stress, employee turnover, absenteeism, sabotage and lawsuits. The workshops can show the cost-reducing benefits or collaborative problem-solving." (emphasis added)

"Mediation Services of Maui is a nonprofit, community-based organization established in 1982 to provide, teach and facilitate dispute resolution. It helps all age groups and in settings such as family, neighborhood, business and government. The process is meant to bring people together to find their own best solutions in a process that promotes respect, communication and peace."

Here is a link to the full article.

Thursday, August 13, 2009

"Economy causes surge in family-law mediation, collaborative work"


An article in the Journal Record today highlights the financial benefits of avoiding a costly divorce by choosing divorce mediation or collaborative law over a litigated divorce. Given the state of our economy, many couples who have decided to divorce are searching for less expensive options which will still result in a fair, complete and enforceable agreement.

This is the link to the full article written by Correy Stephenson. And below is an excerpt from the article:

"Driven by the economy, divorcing couples across the country are increasingly using mediation and the collaborative process – for a fraction of what it costs to litigate a family law case.

For couples who are divorcing and losing some of their assets anyway, cost savings is especially important, said Henry Gornbein, a partner at Gornbein Smith Peskin-Shepherd in Bloomfield Hills, Mich.

“Litigation is so expensive and clients want to keep things as cost-effective as possible, without being in and out of court every week,” he said.
Gornbein recently finished mediating a divorce, with a series of meetings and no court appearances, saving the couple “several thousands of dollars” over the cost of litigation.

“I often ask my clients, ‘Do you want to spend your children’s college education (in court) to resolve your problems, or do you want to keep the money for your family’s future?’” Gornbein said.

Although no statistics are available, Howard I. Goldstein, a partner at Rosenberg, Freedman & Goldstein in Newton, Mass., said that anecdotally, collaborative lawyers are much busier these days.

Compared to just a year ago, his firm has doubled the amount of mediation and collaborative law work in family law cases, he estimated.

“It’s really on fire,” Goldstein said.

Reducing cost
In many cases nowadays, the parties are dividing debt and not equity, which means they need to spend as little as possible to get the process done, Gornbein said.
Other ways to resolve a divorce are attractive because it is “shocking how expensive litigating a divorce can be,” said Goldstein, who just litigated a case that culminated in a two-day trial and cost his client $150,000 – and the client’s ex-wife paid twice that.

Wednesday, August 12, 2009

When Mediation Doesn't Work

Two observations: 1) I think optimism is a required personality trait for mediators; and 2) when mediation does not solve the problem, the optimistic mediator may be devastated.

Not everyone is cut out to be a mediator. Similarly, not everyone is cut out to be a teacher or a police officer or a therapist or long distance truck driver, etc. We all have natural abilities which can be enhanced with skills training and there are some things, no matter how much training we have, that we just can't be taught. I think irrational optimism is one of them. And I have to confess that I am an irrational optimist. Yes, I think it makes me a good mediator and it has some other upsides in the rest of my life that I can't complain about, but it also has a downside (that would be the "irrational" part).

As an irrational optimist, I truly believe that anything is possible in mediation despite a history between the parties of a complete
inability to reach an agreement - on anything. Not all couples are unable to reach agreements on anything. Some mediating couples just need help and guidance through the divorce process or to come up with a good parenting plan in a separation. Other mediating couples are able to reach agreements on certain things but just need some help in generating creative options for settlement and to figure out what feels fair between them. And other mediating couples are not able to agree on anything and it's often amazing that they both agreed to use my services in the first place.

So there are low-conflict couples and there are high-conflict couples and everything in between. But even the high-conflict couples are usually able to reach agreements in mediation because they were able to work together at least to get themselves to my office. This means I generally have the pleasure of working with couples who, despite a difficult situation, want to maintain some level of civility in working through their divorce and I am happy to help them accomplish that even when they have not been able to agree on anything (sometimes since well before their separation).

I think it's this irrational optimism that results in a feeling of incredulity and something like emotional devastation when one of my cases "falls out of mediation." This does not happen very often. In the last five years of solely mediating family law matters, I have had only a couple cases fall out of mediation. One of those happened this week. In fact, I have had more couples end mediation because they are reconciling than I have had couples end mediation because there was no hope of reaching an agreement.

In an earlier case, I agreed (for the first time in my 10 years as an attorney) that mediation was no longer appropriate even though an agreement had been reached. They were a high-conflict couple and they truly needed more mental health support than mediation typically provides. Although we are able to deal with the emotional aspects of divorce in mediation, some couples need far more support, which is when I recommend the Collaborative Law Process which includes a divorce coach and mental health experts as well as attorneys who all agree to stay out of court. It's not a cheap option, but it is much kinder and supportive (and yes, less expensive) than traditional litigation. Even though I agreed mediation was no longer right for them, I was still shocked that it came to that, particularly since they had reached an agreement through mediation and it was only afterward that the agreement fell apart.

In this more recent case, I'm not convinced that the couple can't continue their work together in mediation to reach a settlement but it has fallen out of mediation nevertheless. Maybe this is my irrational optimism or maybe it's what I know from practicing law for 10 years and spending more time in a courtroom than I care to remember. But if 90% of cases settle before trial, and if all along the way to trial, settlement discussions and conferences are required, why not short circuit all that pre-trial and trial work and focus efforts on reaching a settlement now? It's not easy - it's still a divorce and it's still an emotionally and financially complex situation that nobody wants to find themselves in and there are going to be ups and downs and hard decisions that need to be made. And it only works if both parties want to reach a settlement and do the work needed to get to that point.

Mediation is a voluntary process and I can't make anyone continue with something that isn't working for them. I can only wish them the best of luck and keep my door open in case there's a chance I can help in the future. Because that's the other personality trait needed for a mediator: a sincere desire to help others to get through a difficult time with as little pain and scarring as possible under the circumstances.

Wednesday, June 03, 2009

Family Court called "Needlessly Adversarial"


More good news about family law from Canada's Telegraph-Journal. Well, it's good news and bad news really. The bad news is that the family court systems in Canada seem to be as poor a place to resolve divorce and child custody issues as the family courts in the U.S. The good news is that their government appears to recognize this problem and is working on providing mediation services for couples and parents who wish to work together in a more civilized and less litigious way.

Here is an excerpt:

FREDERICTON - The Liberal government is launching a pilot project that will give families the option of using mediation services to settle disputes outside of the family court system. The announcement came on the heels of a report released Tuesday that found New Brunswick's family court system was "needlessly adversarial, frustratingly slow and much too expensive."

Here's the link to the full article: http://telegraphjournal.canadaeast.com/front/article/687434

Tuesday, June 02, 2009

Divorce Mediation vs. Collaborative Law

Here's an interesting article out of Alberta indicating that the family law attorneys in Lethbridge have moved from the traditional litigation model of divorce litigation (each party has an attorney and the judge decides everything through hearings and court trials) to the collaborative divorce model which is a team approach using mental health and financial professionals in addition to the attorneys and everyone signs agreements to stay out of court.

The article is titled "Mediation a Team Effort." However, the article is not about mediation at all but is about the Collaborative Law divorce process. Other than the titling error, it is great PR for the collaborative process, which I think of as a close sibling of mediation. Both processes allow the client to have more control over the outcome and both processes are focused on keeping the family out of court and doing what is best for the individuals and their children.

Here is an excerpt:
“It’s a client-centred process,” [Collaborative Family Law Attorney Janis Pritchard] said Monday. “And they needed more than what I could offer.” Divorce, she reminded an audience from a variety of professional fields, is more than a legal issue. Finances are at stake, too, and so is the emotional and mental health of both parties. And during all that trauma, the real needs of children caught in the crossfire are sometimes overlooked. That’s why involving people with counselling or mental health training is essential — right from the start. “They have way better skills,” she said, and helping with the client’s emotional needs may be the first priority.

And here is the link to the article:
http://www.lethbridgeherald.com/content/view/63409/26/

Thursday, April 30, 2009

Custody Litigation Damages the Children


Most parents know that custody litigation is not an ideal place for parents or children and is something to be avoided if possible. Custody litigation is both financially costly as well as emotionally costly. And while parents may recover from the financial impact of a drawn out custody battle and move on with their lives, when do the children recover from being put in the middle of their parents' fight?

As a San Francisco divorce mediator, I encourage parents to work together for the health and future well being of their children. Regardless of the status of the intimate relationship between the parents, they will always be parents. While the relationship between the parents changes, it does not change the fact that the children still need both of their parents in their lives. It can be hard to put aside anger and other strong emotions following a difficult separation, but is a task made easier when both parents are committed to putting the best interests of their children first. Working with a mediator can help make this possible.

(Tug of War image from: The Child Center and Adult Services, Inc. - Shady Grove Professional Building, 16220 Frederick Road, Suite 502, Gaithersburg, MD 20877-4022
(T) 301-978-9750 - (F) 301-978-9753 - E-mail: info@ccascounseling.org)

Saturday, February 28, 2009

SelfhelpMagazine Articles: Marriage - 10 REASONS TO TRY DIVORCE MEDIATION

I have pasted below a link to an article in Self Help Magazine that provides 10 short but important reasons to try divorce mediation. Here is the introduction to the article:

"You've decided to seek a divorce. Your nerves are frayed; the in-laws are asked pointed questions; the children are beginning to act up in all-too-transparent ways; and your pleasantness is in the midst of an earthshaking landslide. What can you do? Clearly, you can hire legal advice. But who? Here's a checklist of reasons why working with a trained mediator can often help:"

SelfhelpMagazine Articles: Marriage - 10 REASONS TO TRY DIVORCE MEDIATION

Posted using ShareThis

Thursday, January 29, 2009

Is Mediation Binding?

This is a confusing question given how mediation works. If the question is posed as: "Is an agreement reached through mediation binding?" then the answer is "Yes!"

But because the mediator is not making decisions for the parties, when someone asks the more common question: "Is mediation binding?" I have to first unravel the question in order to make sure that my answer explains that the question doesn't make sense. And when I read articles from various online sources stating that "mediation is not binding" it has a tendency to drive me crazy because that is inaccurate and misleading.

In arbitration, where an arbitrator is hired to make a decision for disputing parties, the arbitrator's decision can either be binding or nonbinding. This means that the parties in the beginning of the case decide whether the decision reached by the arbitrator (who basically sits as a judge) is going to be the final decision in the case or whether the parties will keep their right to bring the dispute to trial if they don't like the decision imposed by the arbitrator.

But mediation is different from arbitration. In mediation, the mediator is hired to help the parties reach an agreement that works for them. There is no deciding whether the agreement reached through mediation is going to be binding or nonbinding because the goal of mediation is to arrive at an agreement everyone can live with. Once the parties reach their agreement, there is an agreement and therefore an end to the dispute. The agreement reached by the parties is put in writing and signed by the parties (creating a binding contract) and is submitted to the court and turned into an order of the court (just as if the judge had made the order directly to the parties).

So, yes, an agreement reached through mediation is binding because that is the purpose of mediation. Anyone who says mediation is not binding is mistaken and most likely does not understand how mediation works.

Friday, January 02, 2009

Why Isn't Mediation More Common on TV and Movies?


Happy New Year! At a recent social event, I was engaged in a conversation with a well-educated and informed individual ("Pat") who was curious about my chosen profession as a family law mediator. Pat wanted to know more about the types of clients I work with, how people find me and how I help couples in a different way than traditional attorneys do. I explained to Pat that as a neutral mediator, I do not take sides in a dispute, but instead help couples work together in what I see as a more civilized manner than what litigation often requires.

I told Pat that the family courts require couples to "meet and confer" to try to reach informal resolution at every step along the way even in a fully contested court dispute, and that the vast majority of court cases settle before trial. I also told Pat that it made more sense to me to start couples off in a less antagonistic and more collaborative way, to start working together toward informal resolution right from the start and avoid the time, expense and stress of unnecessary litigation to get to the same point that almost all divorcing couples get to at some point which is a settlement.

My logic made much sense to Pat and Pat added that it seems couples who reach their own agreements are more likely to feel satisfied with the win-win results over the more traditional win-lose results from a court battle (although I think those results are more like lose-lose for everyone, including children who are caught in the middle of such battles!)

In asking how clients find me, (which I said is through referrals from past clients and also from attorneys and from the Internet). Pat was curious to know why we don't hear or see more about mediation in the media. Pat said that every divorce portrayed in television or movies includes one side battling the other side, both armed with attorneys and neither of the disputing individuals even talking to each other; Pat and I both searched our memories for divorce mediation having a starring role in such shows. I agreed that the traditional model of battling litigants is much more prevalent despite the fact that it does not make good sense on any level. The way I see it, a couple knows their own finances and their own circumstances and history and issues relating to their own children better than anyone so why would we not want this couple to communicate directly with each other? And why would we want a stranger (the judge) to make decisions about their personal lives rather than trying to assist the couple in finding their own solutions that actually work for everyone involved?

I recognize that circumstances surrounding the end of a marriage or partnership are generally not ideal, but my goal is to help couples who have decided not to stay together to still communicate with each other productively to get through the difficulty of a divorce in a more civilized manner and to maintain control over the decisions made about their own children, retirement plans, stock options, intellectual property, real estate, support and anything else that is related to each couples' situation.

All of this means that mediation is less dramatic than a court battle that takes a year or more and tens of thousands of dollars. Although drama makes for good television and movie scripts, it does not make for peaceful resolution of issues in most couples' divorces. So that is my theory as to why we don't see mediation much on TV or in movies. Any other ideas?

Tuesday, November 18, 2008

Gilbert Guide-Resources for Seniors


The Gilbert Guide is an online resource which caters to seniors. http://www.gilbertguide.com/ provides information on finding long-term care, (assisted living, skilled nursing, hospice, adult day care and at-home care) in addition to information on all types of issues affecting seniors. These include legal issues affecting seniors, (family law, estate planning, probate, elder abuse, etc.) nutrition, real estate, medical issues, caregiving, technology, etc.

There are learning centers, expert columns, product and service recommendations and other interesting resources. As of last week, I am one of their experts, writing a column on Family Law & Mediation.

If you or someone you know has a need for information relating to seniors (health, lifestyle, legal, etc.) be sure to check it out!


Monday, October 13, 2008

Premarital Mediation can be almost ... fun

In most of the cases I mediate, my clients tell me how glad they are that they chose to mediate (whether it's a divorce mediation or premarital agreement mediation). Most of my clients also tell me how surprised they are that I was able to help them resolve issues they were not able to resolve themselves and/or how thankful they are that I made the process so easy.

Here is a thank you I recently received by e-mail from clients (names changed) who worked with me to create their own unique and balanced premarital agreement:

"Back in July you mediated a pre-nup for my now-wife, Sally, and me. Now that the wedding dust has finally cleared, I'm writing to thank you. Sally and I really felt like the mediation experience helped us not only to get our financial house in order, but to prepare for marriage in a larger sense, in that the process encouraged open communication and healthy realism. So, thank you for facilitating that. After working with you, we felt intensely glad that we did not subject ourselves to the traditional, adversarial process; little did we know that working out a pre-nup could be almost . . . fun."

Sunday, September 14, 2008

Real Estate Woes and Divorce

The current mortgage crisis has a severe ripple effect, reaching out and impacting most people's lives in some way or another. One of the impacts I am seeing as a divorce mediator is that divorcing couples are struggling more than ever to figure out what to do with the family home. Couples are continuing to live together despite their pending divorce and desire to not be living together and couples are remaining on the mortgage and the title to the house together because there is no way to split it up when a refinance is impossible and a sale would leave the couple owing money to the bank. Creative solutions are needed in these situations but it's not an easy issue for anyone.

Here is an article from the San Diego Union Tribune - "Unable to sell homes, split-up spouses stay put, postpone divorce" - which tells the stories of three different couples facing this difficult situation. The link to the full article is here and I have pasted an excerpt below:

"Getting divorced is one of life's most difficult passages, and the housing market meltdown is making it tougher. With home prices plunging and foreclosures soaring, divorcing couples are finding it harder to rid themselves of jointly owned property –and as a result, each other.

Even when one spouse is willing to buy out the other and remain in the home, tighter credit means banks often refuse to refinance mortgages on properties with little or no equity.

“They used to fight over who was going to keep the house,” ...[] “Now they're fighting to get away from the house.”

Wednesday, August 20, 2008

Therapy for Relationships, Divorce and Parenting

As a divorce mediator, I have quite a few resources available to help divorcing couples or individuals in various ways. I know great financial advisors for couples getting married or in a relationship, Certified Divorce Financial Analysts to help divorcing parties make good financial decisions in a divorce, CPAs for tax advice, appraisers for businesses and property, actuaries for pension and retirement plans, estate planning attorneys for wills, trusts and quitclaim deeds and therapists.

This last category - therapists - is so broad and so useful for couples in so many stages in the relationship continuum, that I thought I should share some of the ways couples and individuals can benefit from working with a therapist. Of course, I am not a therapist and I only give this information because I have seen and heard reports from my clients on so many of these benefits that I want to let others know what a valuable resource this might be in their lives. I also recognize the importance of both parties feeling comfortable with the therapist they are working with and I recognize that not all couples are in favor of any form of therapy. But if it has a chance of helping or saving your relationship, it just might be worth trying and finding the right therapist for your relationship.

Pre-marital: Couples can get marriage preparation counseling with a therapist. This generally includes a short-term plan of just a few sessions for the couple to gain valuable tools for healthy communication in their marriage together. I think of this as preventive counseling and it is designed for couples who might not otherwise be in counseling except for the fact that they are getting married. In other words, it's not counseling to "fix" something that is wrong; it is counseling to ensure nothing gets broken in the first place.

During the marriage/relationship- at the first sign of trouble: If a problem arises during the relationship and it doesn't get resolved and the couple is having difficulty communicating or overcoming the problem, a therapist can help get the couple back on course. I think of this as fixing a fixable problem before it becomes a much bigger problem and a threat to the relationship.

During Marriage - Beyond the First Signs: I know many couples' therapists who wish they could have started working with some couples months or even years before the couple finally ends up in their office. If the problems have become insurmountable and have affected the relationship so negatively, this presents the biggest challenge to therapists and the couple who are fighting to save their relationship when it is so far beyond the first signs of trouble.

At the End - Decisionmaking: Some couples specifically enter counseling to get help to decide whether their relationship is beyond repair or can still be saved. Therapists can help a couple work through this and make decisions that are right for each of them and for their family as a whole.

Divorcing Couples: Therapists can help couples or individuals deal with the emotional difficulties of what is sometimes called the death of a relationship. Getting help to manage this often-traumatic experience, regardless of the reasons for a divorce, can be a very important part of the healing process.

Divorced or Divorcing Parents: Some therapists specialize in working with parents who have decided to end their relationship with each other but who must continue to have a healthy relationship for the benefit of their children. As a divorce mediator, I work very closely with parents to ensure that their children's needs and interests are met and that the parents understand how important having positive relations and communication with each other is to the health of their children. Parents who continue to work on their revised relationship as parents who are not together but are both still parents are doing their children the biggest favor of all.

Not all therapists specialize in each of these areas and it's great to find one who specializes in the area that you need help with. Many therapists have their areas of expertise outlined on their websites. If not, call them to find out if they specialize in the things you would like help with. Good luck!

Sunday, August 10, 2008

Protecting Credit During Marriage


Kathleen Pender's "Net Worth" column in the San Francisco Chronicle's Business section is one of my favorite columns. She frequently discusses issues like retirement plans/benefits, mortgages, credit, investments and estate planning that are directed to all of us and not just the Fortune 500 business people out there. She's great at taking complex issues and distilling the important pieces for regular people.

Her recent article "Protect Credit After 'I Do'" provides some very useful advice for couples to protect their credit scores once they are married. She dispels the myth that once you get married, your credit scores are combined, and she gives tips for couples to keep their accounts separate in order to not have one person's negative credit history affect the other person's clean credit history.

Although there are great tips in the article, my biggest concern is that the article does not tell readers that once you get married, your debts are joint because principles of community property apply to debts as well as assets. That means that even if a debt incurred during marriage is only in one person's name, both individuals are legally responsible for that debt. That comes as quite a shock to many people, particularly couples who have divergent ideas of how to manage money and debt.

The other concern I have is that someone is quoted in the article as saying that you should keep separate accounts during marriage so that "'The individual account is entirely under your control. If there is a divorce, those joint accounts could be in dispute.'"

The problem with that statement is that just because you put funds into a separate account, that does not mean those funds are not in dispute in a divorce, that they are not community assets and that the account is entirely under your control. If money that you earn during marriage (i.e., community funds) is deposited into an account solely in your name, that is a community asset and it does not matter who earned it or whose name the account is in - each person owns it 50/50. And, in a divorce, if you use, transfer or move around money in this kind of "separate" account that holds community money, you may be paying all or some of that back to your spouse since it is not technically your own separate money.

There are many things couples can do to set up their financial partnership together and to maintain control over their assets during marriage as well as in the event of a divorce. The smartest thing a couple can do is to get premarital legal and/or financial counseling to know what their rights and obligations are during marriage and in the event of divorce.

Thursday, July 31, 2008

"We Agree On Everything - Do We Still Need Mediation For Our Divorce?"

Answer: Maybe; and it might be a great idea!

I often receive calls from couples who have decided to work together to dissolve their marriage amicably and they are not certain whether it's a mediator or a lawyer they need to help them accomplish this goal. Because I provide both services, I explain the differences and the situations in which one might be preferred over the other.

Mediation is a great option when parties are unable to communicate and negotiate directly with each other to find a resolution of their disagreements or disputes. A mediator assists the parties by asking the right questions, directing the discussions in a productive manner and helping the parties make reasonable and rational decisions based on all the information and to reach settlement and finalize a case efficiently.

In divorce mediations, mediators usually prepare not only the Marital Settlement Agreement that results from the mediation sessions, but the mediator also assists the parties in getting the divorce action filed and finalized in the court (although attorneys are involved in reviewing and finalizing the settlement agreement).

In the case of a divorcing couple who have already agreed on how they will divide their community property assets and debts, whether, how much and for how long spousal support will be paid, and all issues regarding children (custody, visitation and support) and taxes, there may be no need for a neutral third party to facilitate discussions, but the mediator can still be extremely valuable in preparing a balanced agreement which meets the needs and desires of both parties equally instead of being drafted by one party's attorney and then getting shuffled back and forth between attorneys trying to balance it back out.

So, while a divorcing couple with agreements on all issues may not need a mediator, but may find a mediator to be quite useful in getting a fair agreement drafted up quickly, some divorcing couples with agreements may instead choose to simply use one party's lawyer to get the job done.

In that case, one party can hire a lawyer to file the divorce action and to prepare the draft settlement agreement and remaining judgment paperwork. The second party will hire their own lawyer to review and make any needed changes to the settlement agreement and will prepare that party's financial disclosures. The attorneys will gather all signatures and get the paperwork filed with the court in order to finalize the divorce.

This assumes there is agreement on all issues. If the parties discover there is disagreement on some or even just one issue, a neutral mediator can be called in for the limited purpose of helping to resolve the remaining issues and/or to draft up the agreement.

If the parties are unsure whether they have agreements on all issues, mediation is a great place to start productive and organized conversations to identify the issues and figure out where the parties are in agreement and where the parties may need assistance in reaching their agreements. Or, if the parties meet with their own attorneys first and then decide to mediate their agreement and work together collaboratively to reach their settlement, they still have that option at any time.

In divorce mediation, the couple can start with mediation before filing anything with the court, they can start mediation after the case is filed, and can also mediate their divorce whether or not the parties have their own attorneys involved in the case. Mediation can always be used as a powerful tool for the parties to stay out of court, reduce their attorney's fees and the time spent fighting; so no matter where you are in your case, mediation is still an option to be considered to help you both get to where you want to be.

**This post previously appeared in March 2007 and has been revised and updated**

If Your Contract Requires Mediation Before Court, Mediate!

If the contract you signed states that the parties agree to mediate any disputes, you must comply with that provision and mediate before you run off to file any type of lawsuit, or else your lawsuit will be dismissed. All types of contracts can have a mediation provision (which is different from an agreement to arbitrate), including real estate purchase agreements, lease agreements, employment agreements, premarital agreements, marital settlement agreements or any other agreement.

Here is a short article from the National Arbitration Forum, titled: "Failure to Comply with Contractual Obligation to Mediate Results in Dismissal of Case"

A California federal court determined that the failure to mediate a dispute pursuant to a contract that made mediation a condition precedent to filing a lawsuit warranted dismissal.

In Brosnan v. Dry Cleaning Station Inc., No. C-08-02028 EDL, 2008 WL 2388392 (N.D. Cal. June 6, 2008), Brosnan entered into a franchise agreement with Dry Cleaning Station. The franchise agreement included a provision, which required both parties to enter into mediation of all disputes prior to initiating any legal action against the other.

Thereafter, Brosnan filed an action against Dry Cleaning Station alleging state law claims relating to fraud and breach of contract. Dry Cleaning Station filed a motion to dismiss Brosnan's complaint based on Federal Rule of Civil Procedure 12(b)(6) on the grounds that Brosnan failed to engage in mediation of the dispute prior to filing their lawsuit as required by the franchise agreement.

In response, Brosnan sought a stay of the matter rather than a dismissal. The Court stated that a claim filed before satisfaction of a condition precedent, such as a mediation requirement, should be dismissed.

In this instance, there was no dispute that Brosnan did not pursue mediation prior to filing the lawsuit. Under these circumstances, Dry Cleaning Station opted for dismissal. The Court granted Dry Cleaning Station's motion and dismissed the case.

The Court noted that in contrast to mediation, where a plaintiff attempts to exhaust its arbitration remedy or raises issues not susceptible to arbitration or not covered by the arbitration agreement, a stay rather than dismissal of the lawsuit is appropriate.

Wednesday, July 23, 2008

Mediation Confidentiality


One of the first things I do in a mediation is to explain to the parties that everything that happens in the mediation is confidential unless there is a written signed settlement agreement or other signed forms that will be filed with the court from the divorce mediation case. Before the mediation even gets started, the parties sign my Agreement to Mediate, which explains more about the confidentiality of mediation and what it means.

The California Supreme Court has just issued a ruling which strengthens the laws which already protect everything said, done or prepared in mediation from being used in any type of proceeding unless everyone agrees in writing to its use.

Here is an article from the Metropolitan News Enterprise (www.metnews.com), which provides the background of the mediated dispute in that case and the actions of the mediator and the parties. The California Supreme Court held
that it didn't matter that in the court proceedings following a terminated mediation, a party had not previously objected to the use of otherwise confidential statements in the proceedings to enforce the unsigned settlement. The court held that there is no exception to the rule of mediation confidentiality unless the parties signed the settlement agreement, thereby making the agreement no longer confidential.

Here is the article and the link:

No Estoppel Exception to Mediation Confidentiality, S.C. Rules

By KENNETH OFGANG, Staff Writer

The California Supreme Court took a strict view of mediation confidentiality yesterday, unanimously ruling that statements made during the process could not be used to bind a party to a settlement agreement she did not sign.

Reversing a Los Angeles Superior Court judge and Div. Three of this district’s Court of Appeal, the high court overturned a breach-of-contract judgment against Dr. Lida Ghaderi, a Santa Monica physician.

The judgment grew out of a malpractice claim by the family of Ghaderi’s patient, Kintausha Clemmons, who was being treated by a nephrologist, who was treating her with dialysis for renal failure. Without consulting with Clemmons’ nephrologist, Ghaderi allegedly took Clemmons off dialysis, resulting in her death from severe renal failure.

Consent Form

During mediation before retired Los Angeles Superior Court Judge Robert T. Altman, Obi Amanugi—a claims specialist from Ghaderi’s malpractice insurer—obtained Ghaderi’s written consent to settle the case for no more than $125,000. The consent form provided that the consent could only be revoked in writing.

By statute, a claim against a health care professional covered by a professional liability policy can only be settled with the insured’s written consent.

During the mediation, while Ghaderi was in another room with her Cumis counsel, Robert C. Reback, the claims specialist and the insurer’s attorney, Kent T. Brandmeyer, told Altman the carrier would pay the plaintiffs $125,000 to settle. The plaintiffs accepted.

But when Altman was reducing the settlement to writing and Amanugi reported the settlement to Ghaderi, she responded, “Good, because I am revoking my consent.” Soon thereafter Ghaderi left the building, ending the mediation.

Altman, the plaintiffs, and their counsel signed the settlement agreement. No one signed on behalf of Ghaderi or her insurer.

During the next 15 months, the parties litigated the legal effect of the events that had taken place at the mediation. Ghaderi’s attorneys voluntarily turned over to plaintiffs’ counsel a copy of the consent form signed by Ghaderi, and did not object to a declaration by Altman concerning the events at the mediation filed in support of a motion by plaintiffs to enforce the settlement.

In her opposition to that motion, and in her own summary judgment motion, Ghaderi acknowledged having authorized the insurer to settle within the $125,000 limit, then revoking her consent only after being told that the settlement was orally agreed to by her insurer.

Bifurcated Trial

Los Angeles Superior Court Judge Richard Fruin denied Ghaderi’s motion for summary judgment, allowed the plaintiffs to amend their complaint to state a cause of action for breach of oral agreement, and bifurcated the trial to hear that claim first.

Ghaderi filed a trial brief, in which she objected to the admission of any evidence relating to the mediation, and argued for the first time that “[a]ny attempt to introduce evidence of discussions, purported agreements, or any form of communication at mediation or thereafter” was barred by the mediation confidentiality provisions of the Evidence Code.

Following a bench trial, however, Fruin entered judgment in favor of the plaintiffs in the amount of $125,000, reasoning that Ghaderi had given her attorneys, her authorized agents, authority to communicate a $125,000 offer to plaintiffs, and the offer had been accepted prior to any withdrawal of consent.

On appeal, Ghaderi argued that her revocation of consent was sufficient to prevent the settlement from becoming effective, and that no evidence of the events occurring at the mediation was admissible due to the principles of mediation confidentiality.

A divided panel of the Court of Appeal affirmed, saying Ghaderi was estopped to argue mediation confidentiality, since she had presented evidence of the mediation proceedings herself and had not objected to the plaintiffs’ evidence.

But Justice Ming Chin, writing yesterday for the court, said that neither estoppel nor implied waiver is an exception to mediation confidentiality because any such exception must be authorized by the statutory scheme commencing at Evidence Code Sec. 1115.

Under those provisions, Chin explained, exceptions to confidentiality are “narrowly delineated.”

He cited Sec. 1122, which says that a settlement agreement or other written document prepared as part of the proceedings, may be disclosed only if “[a]ll persons...who participate in the mediation expressly agreed in writing, or orally in accordance with Section 1118, to disclosure.”

Sec. 1118 permits disclosure of an oral settlement if the agreement is recorded, all parties agree in the presence of the mediator that the agreement shall be binding, and the agreement is reduced to writing and signed by the parties within 72 hours.

Chin also noted that under Sec. 1123, a written agreement entered into during mediation may be disclosed only if the parties expressly agree or the document is used to show fraud, duress, or illegality.

The current statutes, Chin added, were adopted in 1997 on the recommendation of the California Law Revision Commission. Both the unambiguous statutory language and the commission comments, he wrote, show that the Legislature did not intend to permit “judicially created exceptions” to confidentiality.

“[B]y creating fixed procedures that allow only certain evidence produced at mediation to be admitted in later civil proceedings, the Legislature was undeniably aware that some agreements made during mediation would not be enforceable,” Chin wrote. “The statutes thus reflect a policy judgment made by the Legislature when weighing the value of confidentiality. Creating exceptions to admit evidence that does not meet statutory requirements would run contrary to legislative intent.”

The case was argued in the Supreme Court by Shirley M. Hufstedler of Morrison & Foerster for Gharderi, who was backed by the Southern California Mediation Association and California Dispute Resolution Council as amici, and by Martin R. Berman of the Law Office of James Aaron Pflaster for the plaintiffs.

The case is Simmons v. Ghaderi, 08 S.O.S. 4283.

Monday, July 14, 2008

Divorce Mediation and the Brinkley-Cook trial


I hate to sound like a broken record, but as a divorce mediator, it's hard to figure out why divorce mediation isn't the option everyone chooses in a divorce! Here's an informative article from newsday.com about divorce mediation and the unfortunate fact that New York remains one of the worst places to get divorced.

The article is "New York State lags in using divorce mediation" reported and written by MICHAEL ROTHFELD and staff writer MELANIE LEFKOWITZ. July 14, 2008

Isn't there a better way?

The salacious and rage-fueled divorce trial of Christie Brinkley and Peter Cook may have made for good gossip, but experts say it is also a perfect example of everything divorce shouldn't be: expensive, public, bruising and adversarial.

Aside from the cameras and commentary, experts say the Brinkley-Cook trial, which ended last week after the parties settled out of court, is emblematic of divorce in New York, which lags behind dozens of states when it comes to offering alternatives to knock-down, drag-out courtroom battles.

From custody to mediation to financial issues, experts say the way New York State handles divorces makes the process far worse for both parties.

Andrew Schepard, a Hofstra University law professor who specializes in issues surrounding divorce, said New York's method of handling custody, for instance, is among the most adversarial in the country.

"It puts a premium on digging up dirt on the other party," Schepard said. "It puts a premium on each side saying, 'I am better than the other parent.' That is how parents 'win' custody. What they should be saying is, 'What are my children's needs during this divorce?'"

In the area of mediation, New York lags behind most states. Judges in the state do not have the power to order couples into mediation, which can reduce costs, create less divisive outcomes and help spouses maintain better relationships with their children and each other.

Programs not available to all

Courtroom alternatives, such as early-settlement panels and giving extra attention to high-conflict custody cases, are available only to couples who live in counties with pilot projects. Statewide, the state's Office of Alternative Dispute Resolution has an annual budget of $5 million in a court system that spends $2.4 billion a year.

But though change is not happening as quickly as many advocates would like, it is happening.

For the past two years, Nassau County has offered a program called "Children Come First," in which couples whose divorces are identified as acrimonious are evaluated and referred to services such as counseling and parent education. If they can't settle their differences with the increased oversight, a trial to resolve child custody disputes is held within 30 to 45 days.

Suffolk County recently began offering voluntary mediation, in which spouses are referred to approved mediators.

"It gives the parties the total control over the proceedings, because they can then decide and guide the whole proceeding through the neutral mediator," said Suffolk Administrative Judge H. Patrick Leis III. "Litigation is definitely a difficult way to do it, because afterwards one is a winner and one is a loser."

Judged a success

Nassau State Supreme Court Justice Robert Ross, supervising judge of the county's matrimonial center, said 147 couples have gone through the pilot model court since its inception in October 2006, and 80 percent of those cases settled within four months - compared with the one to three years that such contentious cases typically take. In her 2007 State of the Judiciary speech, New York State Chief Judge Judith Kaye called Nassau's program an "unqualified success."

Focusing on custody disputes at the outset, rather than settling them at the end of a yearslong process, keeps angry spouses from using children as weapons in their negotiations, Ross said. Once the custody issues are settled, he said, financial matters often fall quickly into place.

"And that's leading to settlements at an unbelievable rate," he said. "What you're doing for children now who don't have to be exposed to the acrimony of a divorce that's pending for two years, it's a blessing."

Robert Mangi, a divorce lawyer who chairs the Nassau County Bar Association's matrimonial committee and has represented litigants in the new model court, said that his clients appreciate separating issues involving the well-being of their children from appraisals of a house or a business.

Trying to avoid a 'circus'

"Ultimately what we're trying to do is to avoid the circus that you see in the Brinkley case," Mangi said. "If we can avoid a trial where all those issues have to come out, that's a good thing."

But despite some strides, many experts and divorce reform advocates find that change has been spotty, incremental and slow. In more than a dozen other states, couples are required to try mediation before seeing a judge. In New York, only a handful of counties offer court-sponsored mediation, and even then it is optional.

Leis said some lawyers mistrust mediation because of past encounters with untrained or unprofessional mediators, who are not licensed or regulated. To counter this, he said, Suffolk judges refer couples to a list of approved mediators who have been trained by the state Office of Court Administration.

"It's like trying to turn a battleship," he acknowledged.

Lisa Hicks Yackel, executive director of the New York State Dispute Resolution Association in Albany, said her group has been advocating unsuccessfully for five years for state legislation that would require couples with custody disputes just to hear about mediation. Some lawmakers are opposed because women's advocates fear wives would get steamrollered.

Schepard said he views the Brinkley divorce trial as a lost opportunity.

"It would have been absolutely wonderful for the judge to be able to order these people to mediation or parent education," he said. "Think of the message that would have sent to the public, instead of all the salacious details."

New alternatives

Some local alternatives offered by state courts for divorcing families:

'CHILDREN COME FIRST'

A 2-year-old pilot program in Nassau County that speeds up custody decisions in highly contested cases. Couples meet with a parenting coordinator, who recommends services such as parenting education or anger management to encourage settlement. Spouses who can't settle have an expedited custody trial within 45 days. About 80 percent of the 147 families who came through the program have settled.

VOLUNTARY MEDIATION

Recent Suffolk County initiative in which couples, when appropriate, are referred to a list of court-trained mediators to help them try to work out their differences outside the courtroom.

COLLABORATIVE LAW

A Collaborative Family Law Center, in which divorcing couples and their lawyers work together to reach a settlement with as little conflict as possible, is under construction in Manhattan.

Blocking reform

Experts say divorce reform has failed in New York State because of these three factors:

Opposition from the National Organization for Women, which says its goal is to protect women who may be at a financial disadvantage in the divorce process.

Opposition from conservative religious groups such as the New York State Catholic Conference, the lobbying arm of the Catholic Church.

The lack of an organized constituency in favor of divorce reform.

"Surrendering to Mediation"-Jarndyce v. Jarndyce

I have pasted below the full text of a short and sweet article from the The Orlando Sentinel about how and why mediation works and why you might want to give it a try. But first, I'd like to provide an excerpt about the Charles Dickens' novel, The Bleak House, which is referenced in the Sentinel article, to give you the appropriate context for the Sentinel article.

From David Perdue's Charles Dickens page on The Bleak House: 'Dickens' ninth novel, illustrated by Phiz, was intended to illustrate the evils caused by long, drawn-out suits in the Courts of Chancery. Dickens had observed the inner workings of the courts as a reporter in his youth and observed that "The one great principle of the English law is to make business for itself". Bleak House is often considered Dickens' finest work although not his most popular.'

Mini Plot from David Perdue: 'The case of Jarndyce and Jarndyce, in the High Court of Chancery, has been going on for a long time. The current Jarndyce, John, owner of Bleak House, has little hope of gaining anything from it. On her aunt's death Esther Summerson is adopted by Jarndyce and becomes companions to his wards, Ada Clare and Richard Carstone. Carstone has hopes that the chancery case will make his fortune.'

'As the story unfolds it is revealed that Esther is the illegitimate daughter of Captain Hawdon and Lady Dedlock. When the Dedlock's lawyer, Tulkinghorn learns of this, and tries to profit by the information, he is murdered by Lady Dedlock's former maid. Lady Dedlock flees and later dies at the gates of the cemetery where Hawdon lies buried.'

'John Jarndyce has fallen in love with Esther and asked her to marry him. She consents out of respect for Jarndyce but during the engagement she falls in love with Allan Woodcourt. When Jarndyce learns of her feelings for Allan he releases her from the engagement and she marries Woodcourt. The chancery case comes to a close with court costs eating up all of the estate. Carstone, who has married Ada, dies in despair.'

Now that you have this elaborate context, here is the Sentinel article:

When to surrender to mediationAdrian G. Uribarri Sentinel Staff Writer
July 14, 2008
A contested inheritance sparked the surreally drawn-out case in Charles Dickens' Bleak House. By the time Jarndyce and Jarndyce was over -- generations after it began -- legal costs had devoured nearly the whole estate.

Dickens wrote the novel as a critique of the British judicial system, whence the United States inherited much of its law. More than 155 years later, much remains familiar about the old Dickensian dispute.

But today, there is at least one way to avoid the horrors of Jarndyce and Jarndyce: mediation.

The process involves a neutral party, usually an attorney, hired by you or your lawyers to steer negotiations with the other side. It's confidential and binding, and though it's not always successful, it usually works in less time and with lower costs than going to court.

"I probably settle 90 percent or more of my cases in mediation," says Richard West, a marital and family lawyer and mediator in Orlando. "Without this, the court system would be hopelessly bogged down."

West says that in mediation, parties in dispute can fashion their own solutions to problems rather than rest their fates in the hands of a judge. In Orange and Seminole counties, West says, divorcing couples can't even set a hearing without trying mediation first.

"If it doesn't work," West said, "you end up in front of a judge anyway."
Adrian G. Uribarri can be reached at auribarri@orlandosentinel.com or 407-420-6269.

Tuesday, July 08, 2008

Resolving Workplace Conflicts through Mediation


The San Francisco Chronicle ran an informative and timely piece this Sunday on the benefits of mediation to resolve conflicts in the workplace. This is timely given the difficult economy we are facing and a resulting lack of job security for most of us which might prevent employees from speaking out about conflicts that affect their work.

Here's an excerpt: "So what are employees supposed to do when they have problems with their supervisors but are scared of the potential repercussions of complaining about their bosses and don't want to see an attorney? One answer is mediation, a process that lets individuals resolve their problems with the help of a third-party facilitator. Unlike arbitration ... mediation relies on a wide range of techniques to identify and fix problems. These can include face-to-face dispute resolution sessions, exercises to overcome interpersonal conflicts and even novel techniques to get people behaving in new ways.

"If this sounds too "out there" for the real world, Schear points out that companies such as Coca-Cola have implemented an internal alternative dispute resolution program, and employers such as Home Depot are talking about creating similar programs ... Mediators can provide a way to handle these kinds of disputes fairly."

For the full article click here.

Wednesday, June 25, 2008

"Give Mediation a Chance"

Yes! Yes! Yes! Give mediation a chance! That's the call from business lawyer and mediator Scott Flegal (he's got one of those last names that destined him for law, just like me!) in the Nashua Telegraph (http://www.nashuatelegraph.com/) on June 12.

In his article, "Before Litigation, Give Mediation a Chance," Flegal explains how he's tried to pitch the virtues of mediation to businesses over the years: " 'In mediation, you make the rules. You control how your dispute gets resolved. You make the decisions. You're in control over your destiny! Isn't that terrific?' Eventually I noticed that it was at that moment of my pitch that people stopped listening to me and started dialing up their lawyer to have them file suit."

After considering the negative impact of litigation and the potential sources of America's love/hate relationship with litigation, Flegal says: "Ironically, part of the solution to this problem may involve rebuilding that very lawyer/client relationship. As lawyers, we might be able to improve it by making sure our clients understand that while the law is almost always relevant in dealing with a dispute, it is not necessarily determinative. There may be other alternatives available to the client that could do a better job of meeting the client's most important interest than filing a lawsuit. As lawyers we must use the law to understand the relative strengths and weaknesses of the client's position. But every bit as important is the role we play in helping the client decide whether asserting those legal rights in court is the best option."

Flegal's pleas to potential litigants as well as to the attorneys who are hired to help the clients to find the right solution is well-founded. Self-determination is a cornerstone of mediation and stepping up and facing a dispute as a rational adult capable of negotiating and making informed decisions is truly a great way to resolve any type of dispute!


Wednesday, June 11, 2008

Advanced Mediation Training for Mediators


The fabulous Community Boards Conflict Resolution Services of San Francisco is well known among practicing mediators as well as many members of the community who have used Community Boards' no-cost and low-cost mediation services to resolve their disputes (which include neighbor disputes, family feuds, roommate problems, landlord & tenant disputes, parent & child issues, fences, pets, tree maintenance, vandalism, etc.).

Many mediators started their mediation training at Community Boards through their Basics of Mediation courses and became panel mediators for Community Boards. Now, Community Boards is offering Advanced Mediation Trainings which build on all the skills mediators learned in The Basics and offer strategies for both community and non-community based mediations. This means that professional mediators can work to improve their skills as mediators in their fields and interact with other professional mediators.

I am very excited about this training in part because I'm one of the trainers and I think this is a much-needed course. But I'm also excited because the Community Boards model and techniques that are taught in The Basics are so valuable in every mediation I conduct, that to be able to build on those techniques and skills as a mediator and to work with all the amazing talent at Community Boards while doing it, is really just an ideal situation for all mediators!

Here's info for the one-day course, "Advanced Settlements & Complex Mediations" (Saturday, August 16 9:00 AM - 5:00 PM)
*Advanced Settlement Strategies *Techniques for Breaking Impasse
*"Dealing with Dollars” in Negotiations *When and How to Use Caucus
*Complex Mediations *Multi-party Mediations *Managing Mediations with Third Parties

The workshops will combine short lectures, group discussions and role play practices. Additionally, there will be a BYOP (“Bring Your Own Problems”) working lunch for participants to ask the trainers for their input and expertise. The training will conclude with a “Building Confidence, Demonstrating Competence” session. Lunch is provided.

Go to http://www.communityboards.org/ and click on trainings and scroll through the Basics and Mediation Masters and Refresher Course Trainings and go to Advanced Mediation Training for more information about the course and the trainers. Or go to www.communityboards.org/advancedtrainings/asp. Happy mediating!