Here's a great article on the training process for doctors and lawyers involved in a new mediation project to resolve malpractice claims. The article is from Philly.com. One of the things that makes this so unique is that the doctors themselves are being trained as mediators, which means they are being trained to listen to patients in a whole new way. I think this is wonderful idea and can only help patients as well as doctors. (Illustration by Myron Macklin / http://www.artninja.com// Used with permission.)
Doctor-lawyer project tackles malpractice
By Stacey Burling
INQUIRER STAFF WRITER
Doctors and lawyers in Montgomery County are doing something unusual: working together.
Members of the county's bar association and medical society, along with Abington Memorial Hospital, tomorrow are launching a pilot project they hope will keep more malpractice disputes out of court.
Lawyers and doctors will work in teams to mediate conflicts between patients and the hospital or doctors. The hope is that the new approach will resolve problems more quickly and humanely, without the demonization of both sides that can occur in malpractice battles.
Whether it will save money remains to be seen. Project leaders say that is not the primary goal.
John J. Kelly, Abington Memorial's chief of staff, said he wanted to avoid the "harshness" of litigation. "At the end of the day, I think everybody walks away feeling like it's a much more productive process, and it's a healing process," he said of mediation.
"I think litigation makes everything so much more painful for everyone, and I'm not sure healing ever occurs."
Planning for the project started three years ago after a nudge from the state Supreme Court. It encouraged counties to look at alternatives to traditional court battles as doctors threatened to leave Pennsylvania because of skyrocketing malpractice-insurance rates. Not much has happened elsewhere in the state, but doctors and lawyers here pursued it because "there's got to be a better way to do things than the way we've been doing them," said Mark Lopatin, a rheumatologist, who led the medical society's part of the effort.
People on both sides say the current system is emotionally draining, even when you win.
"Clients hate courtrooms," said Robert Morris, president of the Montgomery County Bar Association. "I haven't ever had a client that wanted to get in the witness stand."
The project deals with unhappy patients and their families through a two-step process. In the first, doctors and nurses at Abington have been trained to listen to such patients and explain what happened in as much detail as possible. Project leaders say many people who sue do so primarily to find out what happened.
If that is not enough, patients can move to mediation, a process that helps them hammer out a settlement with their doctors. The mediator shuttles between the sides, bringing their positions together. Unlike a judge or arbitrator, the mediator does not decide the case. Instead, the patient and doctor - or more likely their attorneys - determine an acceptable outcome. Usually that involves money, but patients also often want an apology and assurance that steps will be taken to prevent future mistakes.
If the sides are still fighting, patients still have the option of going to court.
In this region, Drexel University College of Medicine's doctors have the longest-running mediation program. Theirs often uses a team approach, pairing lawyers who typically represent patients with those who defend doctors. Abington's new program creates even more unusual teams. A lawyer with health experience will be the lead mediator, and a doctor will be his "medical partner."
"It's precedent-setting, this project," said Jane Ruddell, a former health-system lawyer who now runs a company devoted to alternative dispute resolution. "It's really trying to change a culture."
Ruddell ran a training session last week in the bar association's Norristown office to train about 30 doctors and lawyers to be mediators. Many of the lawyers had previous experience with mediation, but the daylong program was an eye-opener for the doctors, who understood for the first time how hard and time-consuming it was to sort through strong emotion and find common ground.
In a training exercise, the doctors and lawyers were split into groups for some role-playing. Abington Memorial obstetrician-gynecologist Robert Michaelson played the mediator for one. The bar association's Morris was an angry woman with cancer, and Mark Pyfer, president of the Montgromery County Medical Society, was her even angrier husband.
The patient in the case had had foot pain, which the doctor thought was caused by a pinched nerve. The patient decided not to have surgery the doctor recommended and later lost part of her leg after the cancer was discovered.
Michaelson got into trouble almost immediately, waiting too long to separate the warring parties. He ran out of time without getting close to a settlement, but Morris, who is a trained mediator, and Pyfer, a novice, proved a good team.
"I thought she was negligent because she never paid much attention to me," Morris said petulantly.
"Dr. Reynolds can say she's sorry, but I don't think she has any idea what it's like to go through life with one leg," Pyfer chimed in. Then he asked for $10 million.
Doctors came away from the experience understanding why the lawyers will take the lead in mediations, at least in the beginning.
"The most striking thing about this was . . . how difficult this is," said Lopatin, the rheumatologist.
Frank Murphy, a lawyer who attended the training, said it might be harder than the hospital anticipated to avoid malpractice filings and to persuade lawyers to be totally open with one another. Legal-filing deadlines, strategy, and payment agreements give lawyers an incentive to file in court and, sometimes, to stretch out the proceedings.
Advocates of mediation say it is often cheaper than court because there are fewer exhibits and medical experts to pay for.
Participants usually sign confidentiality agreements, a step that supporters say spares everyone embarrassment. The downside of the secrecy is that mediated cases create no legal precedent and leave no public record. Monetary settlements are reported to the National Practitioner Data Bank. But its information is available only to hospitals and professional groups, not consumers.
Some doctors also worry that mediation will be just one more step on the way to court. That has not been Drexel's experience. Of 40 cases that have gone to mediation, only three were unresolved.
Those involved in the Montgomery County experiment say it is more likely to give patients what they really want: early action, an apology, and information. "Patients want answers. That's what they want more than anything," said Sheila Stieritz, a former director of patient safety at Abington Memorial, who consulted on the pilot project. "And if it's something really serious, most patients want it not to happen to anybody else."
Thursday, March 13, 2008
Doctors & Lawyers Mediating Malpractice Claims
More Reasons to Try Mediation
If you've read any of my prior posts, you probably don't need more convincing that mediation is a great way to solve a dispute while saving time and money or that mediation can offer more creative solutions than the court can to deal with complex issues and problems. But in case you're still not sure mediation is worth your effort, read on for excerpts from various articles from the internet:
From the Tucson Citizen: While some parties are relieved to be introduced to mediation, Quiros said, others continue to balk. "People often feel mediation is touchy-feely or they give up control," Quiros said. "It's quite the opposite. Even though there is a third party facilitating, the control of the outcome is completely in the party's hands - there's no judge, no jury."
From the Pittsburg Post-Gazzette: Mediation is private and confidential. Most often the mediator is an attorney, knows neither party and has no stake in the outcome. Nothing said to the mediator in mediation is permissible in a court of law.
From the Harrisonburg, Virginia Daily News-Recorder: Every March, Virginia celebrates one of the most effective, inclusive and thoughtful methods of resolving conflict - mediation. Mediation is a way for people to come together and work things out. Trained mediators help people to bring issues to the table and to sort them out...Mediators simply guide the conversation without taking sides or telling participants what to do. Mediators help people through the stress, anger, confusion and suspicions of the other party to find solutions.
Business Day Interview of mediator Wahida Parker: [] At Equilaw we believe that it’s multi-tiered dispute resolution - that’s a phrase that was coined by Professor Butler. What we mean is it’s one step in the process to resolving disputes - if a mediation is not settled, and our statistics show that 80% of matters that are mediated on are settled at the mediation [] the remaining 20% then can elect either to go to court, or to go to arbitration. That is why we say it’s a multi-tiered dispute. If you say alternate that means it’s the other choice - a completely different choice - and we don’t agree with that stance.
And, from the Edwardville Intelligencer: "...people come out of [mediation] having controlled their fate and agreeing to something, rather than having a jury decide. A lot of times people think the jury was wrong, so at least [in mediation] the parties decided."
Thursday, March 06, 2008
Mediating Elder-Care, Conservatorship & Guardianship Issues
Mediation continues to grow in popularity, particularly in family related disputes like guardianships and conservatorships. I have pasted below the full article on Mediating Elder-Care Disputes from the Wall Street Journal.
Mediating Elder-Care Disputes
By TOM LAURICELLA
March 2, 2008
It's hard enough for families to navigate the complicated and emotionally charged decisions related to elder care when everyone gets along.
Throw in a family with tensions or outright hostility and it's no wonder that disagreements sometimes end up in court, an expensive proposition that can easily magnify divisions.
Another way to handle these problems is growing in popularity: mediation.
A mediator is sometimes brought in at the order of a judge seeking to settle a dispute without taking it to a jury. But elder-care practitioners are urging more families to take the step voluntarily, especially in disputes over how to handle guardianship for family members who can no longer care for themselves.
Mark Dennen's family was embroiled in nearly two years of litigation centering around guardianship for his father, then 92 years old, when a judge ordered the case sent to mediation.
"Everybody brings in all this emotional baggage and the mediator helps bring things into focus," Mr. Dennen says. "It's designed to get to a solution."
The mediation brought the legal battle to an end just months before Mr. Dennen's father passed way.
Agreement Is the Aim
The basic idea behind mediation is that a dispute is resolved through an agreement among the parties, instead of a resolution mandated by a judge or negotiated by attorneys. The role of the mediator -- usually an attorney or someone with a background in social work -- is to facilitate communication and informed decision making.
The cost of mediation varies around the country. In big metropolitan areas, it can easily cost $300 to $500 an hour, although it's possible to find dispute resolution centers that are significantly less expensive.
Robert Rhudy, a former legal-aid attorney turned mediator, has championed the use of the practice to resolve elder-care disputes in Maryland. "In mediation, everybody who is affected by the situation has an opportunity, in a neutral and confidential setting, to tell their story," he says. Whenever possible, that includes the elderly family member.
Defusing Tensions
The mediator can help ease communications among family members for whom the elder-care dispute may reopen decades-old wounds.
"Things like 'Mom always liked you better' and brothers and sisters who haven't gotten along since they were three years old come to the fore," says Mr. Rhudy.
Common candidates for mediation are disagreements between family members who live far away and a sibling who lives closer to the elder and may have a different assessment of that person's needs. Sometimes the disputes are between children and elderly family members who have their own view of where they should be living and who should be caring for them.
Mediation can be used to settle disagreements over living arrangements, how finances should be handled, who should be granted power of attorney, and even visitation rights among squabbling siblings. Agreements often specify the kinds of information, especially financial and medical updates, that will be provided to family members who live far away.
The personal nature of these disputes is what makes mediation helpful, says Forrest Mosten, a Los Angeles attorney who has been a mediator for nearly three decades. "The remedies that a court offers are very limited...but in mediation, an apology may end the dispute."
Mediation also allows for informal or even interim solutions, Mr. Mosten says. "You can try things out and see how they work," he says. For example, instead of immediately pursuing a formal guardianship, one child could become a co-signer on a bank account. "If that works, then you don't have to go any further."
There are some times when mediation alone isn't sufficient, says Nina Weiss, an attorney and mediator in Princeton, N.J. If a guardianship is in order, for instance, that must be ordered by the court system.
The mediation process for elder-care decisions can -- and most say, should -- bring in experts such as social workers, estate-planning specialists and health-care professionals who would typically be called upon as part of a court case. "The courts will recognize the same issues....It's just that you avoid the expense" of litigation, says Joseph Mahon, an estate-planning attorney in New Jersey (who isn't also a mediator).
Finding a Mediator
One challenge facing families looking for mediation help is that there is no formal licensing or credentialing for elder-care mediators, notes James Bergman, a co-director at the Center for Social Gerontology, an Ann Arbor, Mich., nonprofit group that has been a longtime advocate of elder mediation.
"Anyone can hang a shingle out and say they're an elder mediator," he says.
But there are plenty of experienced mediators, so it's largely a matter of tracking down those with experience in the area and, importantly, a mediator the parties feel comfortable with. One place to start are local nonprofit mediation groups, such as the Montgomery County Mediation Center in Eagleville, Pa., which can generally be located online. There are also state organizations, such as the New Jersey Association of Professional Mediators.
Some states have lists of mediators officially approved by their courts. And online, the Association for Conflict Resolution offers the public the ability to find mediators from among its members at acrnet.org.
Also online, Mediate.com and EldercareMediators.com offer names of mediators (who pay small fees to be listed).
Write to Tom Lauricella at tom.lauricella@wsj.com
Click here to go directly to this WSJ article.
Sunday, February 03, 2008
Mediating With or Without Attorneys
I recently worked with a mediator who very strongly prefers to mediate without attorneys present - just with the disputing parties themselves. I found this fascinating....
This mediator was recommended to me by respected colleagues for this particular type of case in which I was legal counsel for one party. So, when I called the mediator's office to find out more about her, I was a bit surprised to hear that she doesn't usually (or ever!) mediate with the attorneys present. In a follow up call, the mediator explained that this preference stems from the litigious, confrontational and hostile behavior exhibited by attorneys in prior mediations and that, in her experience, the attorneys have basically stood in the way of productive settlement discussions. Her preference to mediate with only the parties themselves was so strong that I all but negotiated with her (convincing her that my own mediator background and collegial relationship with the other party's attorney would only assist the mediation process) to get her to agree to mediate this case.
She agreed to conduct the mediation with the attorneys present. And the mediation itself was ultimately successful thanks to her unique mediation style and methods of generating creative options to meet the parties' needs. As the attorneys in the case, we did the best we could not to get in the way of our respective clients' needs and desires in reaching an acceptable and mutually beneficial settlement. In retrospect, I am confident the mediator recognized that the attorneys were able to do more good than harm although I don't know if she has actually changed her general policy.
This experience caused me to reflect on my own practice and policies regarding attorneys' involvement in the cases I mediate. As it happens, I don't have a policy to include or not include attorneys in the mediation room and instead, I leave that decision to the parties themselves. This decision needs to be made before the mediation of course. It would not be a balanced mediation if one party shows up with legal counsel and the other party has no representative.
However, I do have a policy, and an enforced provision in my Mediation Agreements, that each mediating party must have his or her own independent attorney to review any settlement agreement and provide independent advice at some point in the process. This protects both parties, enhances the enforceability of their agreement and enforces the fact that I am not acting as either party's legal counsel, but am instead a neutral, unbiased mediator in the case. Yes, these goals could all be met by having the attorneys present in the mediation, but other goals of the parties aren't always met by having attorneys in the mediation itself (including reducing costs and maintaining a friendly relationship with the other party), particularly during multiple session mediations.
Nevertheless, when it comes to my own preference regarding attorneys in the mediation room, I have to admit that I have noticed more tension, more stubborn digging into positions and less freedom for playing around with creative options in the cases I have mediated where attorneys are in the mediation. This is not to say that all of that is coming from the attorneys, but the cases and clients themselves always seem much more contentious and positions and parties more aggressive and angry when attorneys have been hired to litigate a case and for one reason or another the case goes to mediation.
This is one reason I promote the idea of getting into mediation as early as possible (even before a lawsuit or divorce case has been filed) in order to minimize hostilities as well as expenses and start out with a collaborative mindset instead of a mind set for war. Of course, this is much more feasible in a family law/divorce case, but it's still an option in many civil cases as well.
Thursday, January 10, 2008
Interested in creating your own legal blog?
I have been thinking about the fact that the time I am able to commit to updating my blog on a weekly basis is not what it used to be. It's not always easy to find the time or content that is interesting enough to post for all to read.
While I haven't yet decided on the direction this blog will take, I was interested to read a short article from fellow blogger Mark Herrmann in the National Law Journal that appeared in my Law.com Newswire this morning.
In his article, "Blogging Lessons Learned" Mark discusses the pleasures and pains of creating and maintaining a legal blog (a.k.a. "Blawg") in the form of four lessons learned and provides details with each lesson.
The first lesson: "blogging about substantive legal issues -- is hard".
The second lesson: "blogging is personally satisfying"
If you are interested in creating your own blawg, check out Mark's article.
Thursday, December 20, 2007
Where did the year go??
This year has been crazy in a good way. Here are some highlights for the "Mediation & Law Office of Paula M. Lawhon":
1. I moved to a new office in my building early in the year to get two much-needed mediation/conference rooms in addition to my office, which also functions as a mediation room. This has made it so much easier to schedule mediations since I no longer have to sign up for the shared conference rooms in my building.
2. Early in the year, I also acknowledged my need for a full-time assistant and have been amazed at my own productivity since then.
3. Later in the year, I came to embrace my desire and ability to help people going through complex divorces and other family matters by keeping them out of court and in mediation where they can work through private financial and custody matters with less antagonism and no court involvement. This step meant fewer mediations in employment law, real estate, business, etc. in order to make room for the family law mediation referrals I received. As a former employment lawyer and civil litigation attorney, this was not what I expected. But my current practice as a family law attorney has also helped me to shift my focus into the family law arena. This has been a good shift for me.
4. Until this month, I have kept up with my weekly blog entries on mediation news and thoughts I've had about my own mediations and I also focused on writing a detailed article on settlement agreements for a legal magazine. I enjoy writing but I definitely don't enjoy the feeling I get when I haven't had the time to post a blog entry! Sometimes there's only so much of me to go around!
5. And, finally, I'd like to just say "Whoa!!!" to this end-of-year rush that's happening in what seems like all of my cases. Looks like I'm finishing up my Christmas shopping with everyone else who got bombarded with work obligations this month! I empathize with you!!
Happy Holidays to everyone! I wish everyone a peaceful new year!
Monday, December 03, 2007
More on Open Minds in Mediation
I wrote recently (here) about the necessity of all parties coming to mediation with open minds. Keeping an open mind and not foreclosing options allows the parties, their representatives and the mediator to explore creative ways of resolving the dispute to everyone's satisfaction.
We are reminded of how important an open mind is when we hear about a potential mediation being derailed when one or more parties closes off possible avenues of settlement before the mediation has even started. This is happening in Framingham, Massachusetts, in which a federal lawsuit brought against the town in Boston, charges numerous town officials and two private citizens with discrimination and a coordinated effort to rid the town of its disabled population.
The executive director of the South Middlesex Opportunity Council (which apparently filed the lawsuit on behalf of the disabled plaintiffs) is quoted in the article as saying: "A successful mediation requires both sides to come to the table with no preconditions and with open minds ... This week's Town Meeting vote [that the town's legal team should not turn over local oversight or any money in a mediation of the case] was designed to limit the results which might be achieved through a mediated settlement."
And of course, he is correct. Even without knowing all the details of the case or the specific issues, it is clear that the town is putting the settlement options available to all parties into a box they alone have constructed. These are the "rules" the town is imposing and then claiming that they do want to mediate the case. But these kinds of rules have no place in mediation. Part of the mediation process is allowing for some free thinking and the generating of options that expand the potential settlement options, not limit them before the mediation has even started.
You can read more of the details or the full article from the MetroWest Daily News here.
Monday, November 19, 2007
Divorce Mediation Live Internet Talk Show
I am always searching the Internet to grab any information I think might be helpful to those considering mediation of any type of dispute so I can post it on this blog. I came across this useful press release article regarding an Internet Radio Talk Show which discusses "Myths & Facts of Divorce Mediation." There are live Internet shows and archived Internet shows as well.
Below is an excerpt from the article or click here to go the full article which provides links to the shows:
Divorce Mediation: Myths & Facts, the first show of its kind in the country, educates and informs listeners about mediation - the legal alternative to the expensive battle of divorce litigation. Less than a year old, the show is already proving to be a tremendous success. In its first 10 months the show more than tripled its listening audience, unprecedented growth according to show producer Brian Travis. "Mediation is turning the legal system upside down as more and more people recognize the limitations and costs associated with litigation," says creator and host Philip Mulford, J.D., a professional mediator since 1990 and formerly a practicing attorney. "This show sheds light on an alternative that keeps divorcing couples out of court and saves them thousands of dollars. Despite those benefits and growing awareness, mediation is still often misunderstood and underutilized."
Sunday, November 11, 2007
"Trading Dispute? Try Mediation" - WSJ
Trading Dispute? Try Mediation.
By JAIME LEVY PESSIN
November 4, 2007
A recent Congressional hearing highlighted the continuing debate about the fairness of requiring investors to take disputes with brokers to arbitration rather than to the courts. Some in Congress want to change the rules.
But in the meantime, brokerage customers who feel they have been wronged also have another option: mediation. Mediation can be quicker and cheaper than arbitration -- and investors who enter mediation retain the right to proceed to arbitration if they aren't satisfied.
"The best part of mediation is you can say 'Yes' or 'No,' " says investors' attorney Phil Aidikoff.
"You're never going to get a number as high in mediation as you would if you hit a home run in a hearing," he adds. But "it takes the uncertainty out of the case."
Agreeing to Arbitrate
The paperwork you sign to open a brokerage account generally requires you to bring any disputes to the arbitration forum run by the Financial Industry Regulatory Authority, the self-regulatory body that oversees brokerage firms. Finra's arbitration forum is a court-like system in which large cases are heard by three-person panels that include one industry representative. (Small cases are heard by a single non-industry arbitrator.)
Finra and the securities industry say arbitration is a quick, fair and effective way to resolve disputes. But investors' advocates and some members of Congress say Finra's arbitration forum is unfair to investors, partly because of the presence of industry arbitrators. At the very least, they argue, investors should have the option to sue in the court system.
Earlier this year, Sen. Russell Feingold (D.-Wis.) and Rep. Hank Johnson (D-Ga.) introduced a bill to nullify mandatory arbitration agreements in consumer industries.
Investors are "compelled to use an arbitration forum run by the industry's self-regulator under industry-approved rules," lawyer and arbitration critic Ted Eppenstein testified at a House hearing on the subject in late October.
The Mediation Option
An investor with a gripe against her broker may, typically with the help of a lawyer, file an arbitration claim against the broker and/or the firm. But at any point in arbitration, either party can suggest mediation without interrupting the arbitration process.
If the parties agree to try it, they choose a mediator -- either someone from a Finra-provided list or another mediator they both trust. Selecting a date for a mediation session tends to go much faster than in arbitration, where the parties, three hearing panelists and expert witnesses all must find an acceptable date.
Indeed, mediation is much faster overall: So far this year, it took an average of almost 14 months for an arbitration claim to make its way through the system, Finra reports. Finra mediation cases during that period closed in an average of just over four months.
Before the mediation session, the mediator reviews the parties' documents, and may contact them to learn more. On mediation day, the parties might tell their sides of the story before splitting into different areas. The mediator typically goes between the sides, assessing the strengths and weaknesses of each side's case, relaying messages and possibly suggesting settlement ideas.
About 80% of the time, the parties reach an agreement, either that day or after subsequent discussions, says Ken Andrichik, senior vice president and director of mediation and business strategies at Finra. Other cases proceed to arbitration.
Mediators' rates can run from $50 an hour for a small case to $500 an hour for a large case in a big city, according to Finra. There can be forum charges as well. But if a settlement is reached, you can save some of the legal fees that would add up over an extended arbitration proceeding.
Pros and Cons
Lawyer Steven Caruso, past president of the Public Investors Arbitration Bar Association, a group of attorneys who represent investors, says a potential conflict of interest exists for mediators: "They want to do a fair job, but they're going to get more business from the brokerage firm than the claimants' attorneys." That said, he and other investors' attorneys say they know mediators that both they and defense lawyers trust.
Although some lawyers worry about tipping their hands in mediation, others say mediation gives them a chance to test their cases before bringing a weak argument to an arbitration panel.
The downside to mediation is that if the parties don't settle, mediation may just add time and expense to the process.
On the plus side, though, a mediator may be able to bring an investor's expectations back to earth. Sometimes an investor can't see that his case doesn't warrant a huge award.
Perhaps the biggest benefit of mediation is the degree of control the parties have, from picking the mediator to accepting or rejecting a settlement.
"It makes sense for even an adversary to say, 'Can we solve this in a less adversarial manner and can we keep control of the outcome?' " Mr. Andrichik of Finra says.
Monday, November 05, 2007
More Reasons for Prenuptial Agreement Mediation
As detailed in a previous post, mediation of a prenuptial agreement allows both spouses to sit together with a mediator to create an agreement regarding their marital finances while still preserving their romantic relationship. I have pasted below an article which outlines some of the problems which can arise without a prenuptial agreement. For more information on prenuptial mediation, click here. Here is the full text of the article from MSNBC titled: Love and money: Is marriage a dumb move? Money magazine on whether a walk down the aisle will hurt your finances:
Falling in love after years of building wealth can make life complicated. Tying the knot can sometimes make it worse. Money magazine takes a look at whether marriage means happily-ever-after for your finances:
Michele Mann was doing just fine on her own, thank you. She had launched a successful interior design business, which now earns her about $100,000 a year. She'd nearly paid off the two-bedroom Phoenix condo she had bought for $450,000 in 1992. And she'd amassed a handsome portfolio.
Then, two years ago, the never-married Mann, now 56, met Charles Wally, 67, a divorced retired rancher and insurance executive who lives in nearby Scottsdale, and love changed the game plan. "We were on the same page about so many things in life," says Mann. This month they'll wed.
Mann and Wally are a conventional enough couple that not getting married never crossed their minds. But these days it occurs to plenty of other couples of a certain age and wealth who are put off by the risk and inconvenience of joining two financially mature households.
It's a matter of security and ease: Had Mann and Wally simply opted to live together, for example, they wouldn't have had to deal with sorting out the ownership of two homes, deciding on a succession plan for Mann's business or protecting the inheritance for Wally's four kids from his two previous marriages.
No wonder that over the past decade the number of unmarried partners over the age of 65 has increased by 70 percent. The decision to wed or not, of course, is between you, your intended and your conscience. But you should realize that from a cold-hearted financial perspective, the U.S. tax code and Social Security rules don't necessarily come down in favor of marriage for people with a substantial amount of assets.
True, you'll automatically reap certain legal benefits from tying the knot, such as access to employee perks or a greater voice in health-care decisions. On the other hand, you may find yourself paying a significant price, from lost income to higher taxes. So whether you plan to say "I do," or "Let's not," be sure to ask yourself these questions first.
Will marrying lower your income?
You no doubt realize that if you're collecting alimony from your ex, you'll likely give that up when you remarry. But you may not have considered the effect on your retirement income. Remarry before age 60 and you'll lose any Social Security income you're entitled to from a previous marriage. Ditto for a pension. "If you're retired or one spouse is widowed, you're often better off just living together," says Kirk Kinder, a financial planner in Bel Air, Md.
But matrimony may triumph in this regard: It entitles you to a cut of your new wife or husband's pension and Social Security payment, and that sum may be larger than you otherwise would have collected. Get estimates for both scenarios from the Social Security Administration (use the "Detailed Benefit" calculator ) and your company pension-plan administrator.
Marriage can also affect the taxes you'll pay on your Social Security benefits. As an individual you can earn $25,000 a year before your Social Security benefits are taxed. As a couple, your total income can't exceed $32,000 (for more on what counts against that threshold, see "Working in Retirement: The Real Story" .)
Will marrying raise your taxes?
You may pay more income tax today if you file jointly, but much greater tax savings could come your way later. You can inherit all your spouse's assets tax-free, but an unmarried partner must pay federal estate taxes on any amount over $2 million through 2009. (In 2010 the estate tax disappears, and the exemption goes down to $1 million in 2011.)
If you plan to sell a home, you'll double how much of your profits are free from capital-gains taxes ($500,000, vs. $250,000 for a single person). Both own homes? Consider living in the place you want to sell and renting the other for two years to qualify for the $500,000 exemption, says Dallas financial planner Sean Monohan. After that, move to the home you plan to keep.
Will marriage increase your liabilities?
As a married couple, you'll usually pay lower auto insurance premiums. You may also do better by joining your new spouse's health insurance plan. As a self-employed person, Mann estimates she'll save $265 a month when she's added to Wally's retiree health insurance plan. On the flip side, being married can legally obligate you to shoulder some big expenses, such as your spouse's loan payments or credit-card debts.
Will it disinherit your kids?
If you have school-age kids, be aware that that your new spouse's income and assets will count in financial aid formulas, possibly lowering any help your children will receive. Adult children can pose a different problem: Because marriage would give your spouse first dibs on your estate, you'll need to draft a new will and possibly a trust with the help of an estate-planning attorney to keep your kids' inheritance intact.
For Mann and Wally, the hassles are a fair trade-off for building a financial future together. The couple have already made some changes to their wills - Wally is leaving Mann his house (worth just under $1 million) - and their life insurance policies. And the pair are seeking legal advice on how to handle their other assets and their estates. "On the way to the altar, there's yours, mine and ours," Mann says. "And there's trying to keep the romance alive during it all."
3 fast fixes for Mann and Wally
Choosing to marry has created some financial challenges for the couple. Monohan offers this advice for a lasting union of heart, mind and money.
Decide if the business is theirs or hers. Unless Mann and Wally sign a legal agreement specifying individual ownership, the couple would share the income as well as any liabilities from Mann's interior design business. And half would become part of Wally's estate should he die while the business is running.
Move to her house. Mann plans to sell her condo, estimated to be worth $1 million, eventually. As a single person, she can exclude only $250,000 of her $550,000 expected profit from capital-gains taxes. But if the couple live in the house for two years after they marry, they could keep $500,000 tax-free.
Use insurance for bequests. Wally wants to leave money to his four children, and Mann hopes to provide for her niece and donate to charities. They could do so by updating their wills, but a simpler method would be to make their heirs, instead of each other, the beneficiaries on each of their life insurance policies. http://www.msnbc.com/.
Saturday, October 27, 2007
Keeping an Open Mind in Mediation
In a recent civil mediation with unrepresented parties, one of the parties was looking forward to the mediation and the opportunity to be able to discuss the dispute face-to-face and hear from the other party. Meanwhile, the other party was a bit less excited about the whole thing and wondered why we were here.
Because such divergent (but not uncommon) perspectives can derail a mediation even before everyone sits down at the same table, I spent a few minutes alone with each of the parties to talk about the purpose of the mediation and the importance of keeping an open mind and really listening to what the other party has to say. I discussed the effect that the parties themselves have on the overall mediation based on their own level of participation and engagement with and interest in the process. And I explained that an open mind is necessary for a successful mediation and resolution to the dispute, which is what everyone wants.
While I like to think I am a skilled mediator and communicator, I cannot take all the credit for the 180 degree attitude shift of the previously not-so-excited participant following our chat. Suffice it to say, he immediately relaxed and softened his demeanor, agreeing that he would keep an open mind. It was clear that this was a rationale adult who was interested in doing the right thing, and was easily reminded of what the right thing was with a little gentle prodding from yours truly.
I find that the attitude of the parties is such a key element to the success of a mediation. And I know we are on the right track when the parties themselves are laughing together and there is a certain levity in the room that has replaced the tension that first filled the room. And when the previously disputing parties walk out of the room and share a genuine handshake, I feel so proud of the parties themselves for having come so far and for keeping an open mind to allow that growth to take place.
Mediation absolves Carrbaro Alderman - UNC
I have pasted below the full article from the "Daily Tar Heel" online newspaper for University of North Carolina at Chapel Hill. The article discusses a case involving an assault charge against a public official in which mediation was effective in resolving this very public dispute.
Mediation absolves Coleman charges
By: Andrew Dunn, Senior WriterIssue date: 10/26/07 Section: CityPrintEmail
The assault charge against Carrboro Alderman Dan Coleman was dropped after a one-and-a-half hour mediation session at Orange County District Criminal Court in Hillsborough on Thursday.
Coleman, 55, had been charged with misdemeanor assault with a deadly weapon by the Orange County magistrate after an incident involving Amanda Kotecki, 33, of Durham, during which he hit her with his car at a high school track meet.
Kotecki agreed not to pursue the charge after Coleman, who is running for another term on the Carrboro Board of Aldermen, agreed to release the following statement:
"I apologize to Ms. Kotecki for hitting her with my car. I acknowledge the importance of the volunteer work she was doing in the park that day. And I recognize that when she put her hands on my car, it was out of concern for the safety of the runners.
"I thank Ms. Kotecki for her willingness to talk this through, and I thank the Dispute Settlement Center and the courts for making mediation available."
Coleman will not have to appear in court again, his attorney, Bill Massengale, said.
"I am glad it was resolved," Massengale said. "I think everyone thought (mediation) was a good idea."
The incident occurred about 5:30 p.m. Sept. 5 in Hank Anderson Community Park, according to Carrboro police reports.
Coleman called police after being stopped from driving by Kotecki, who was directing traffic during a cross country race.
Both the 911 recording and Coleman's subsequent written statement say that Coleman, who was driving his 6-year-old son to baseball practice, asked Kotecki repeatedly to let him by and that she jumped on the hood of his car when he moved forward after her refusal.
Kotecki did not release any written statements or make comments to the media.
When the police officer Coleman requested arrived on scene, he took witness statements but did not arrest Coleman.
Police supervisors reviewed the incident and passed the details on to the magistrate, John Maddry, who issued a warrant.
Coleman turned himself in to the Carrboro police station and was released on a written promise to appear in court, according to the arrest report.
Several candidates in the alderman race had tried to use the pending charges against Coleman.
Brian Voyce, a candidate in Carrboro's mayoral election, publicly asked Mayor Mark Chilton to force Coleman to step down until the charges were resolved.
Neither Coleman nor Kotecki will be able to comment further on the case, per the rules of the Orange County Dispute Settlement Center.
"It went good," Kotecki said of the mediation session. "I think Dan's got something that we agreed to say, and I think we'll leave it at that."
Contact the City Editor at citydesk@unc.edu.
(Link to article here)
Tuesday, October 23, 2007
Crafting an Enforceable Settlement Agreement
I was recently asked to submit an article for Plaintiff Magazine's Alternative Dispute Resolution issue. For those of you whose addresses I do not have, I have included a link to the full published article here. For those of you whose addresses I do have, you most likely received a copy in the mail.
The purpose of the article was to highlight the importance of drafting an enforceable settlement agreement as well as to detail the many "general" provisions which can prove immensely useful in negotiating the terms of a settlement.
I have included below the first few paragraphs of the published article:
Enforceability of settlement agreements is an important consideration for all of us. Whether you are plaintiff or defense counsel or mediator, our common goal is securing a settlement that satisfies you and your clients. None of us likes the idea of spending the time, money and effort to reach and draft agreements on what we think are the important settlement terms only to realize afterward that key terms were left out or left uncertain. And we shudder to think that the settlement agreements we have drafted might be held unenforceable if challenged, possibly resulting in lost clients, lost money and malpractice suits.
The California Supreme Court has wisely cautioned counsel to “be wary of ‘overly broad, loose terms in release agreements’” stating that “‘(A)ttorneys’ energies are better spent making sure that release agreements accurately reflect their clients’ intentions than in litigating what their clients really intended when they signed agreements.’” (Hess v. Ford Motor Co. (2002) 27 Cal.4th 516, 530).
So what can counsel do to craft complete and durable agreements which will stand up to challenge and which eliminate uncertainties between parties and counsel?
• First, have a draft settlement agreement to take with you to each mediation or settlement discussion.
• Second, remember that some “general” provisions we might not always think of as being valuable negotiation items may in fact be of value to one or more parties and may significantly impact the overall agreement or outcome.
• Third, have a solid understanding of the laws regarding settlement agreement enforcement before approving a settlement agreement.
If you are interested in reading the full text of the published article, e-mail me and I'll send you a copy.
Sunday, October 14, 2007
International IP Mediation
This all sounds interesting. But what I really like about WIPO is their Arbitration & Mediation Center which "was established in 1994 to offer Alternative Dispute Resolution (ADR) options, in particular arbitration and mediation, for the resolution of international commercial disputes between private parties. Developed by leading experts in cross-border dispute settlement, the procedures offered by the Center are widely recognized as particularly appropriate for technology, entertainment and other disputes involving intellectual property."
Sound interesting? Relevant to the work you do or are interested in? Click here to go directly to the WIPO Arbitration & Mediation Center to learn more.
Tuesday, October 02, 2007
San Dimas Paying $9 Million To Teen Badly Hurt In Car Crash
An Associated Press story (from the San Francisco Chronicle) about a mediated settlement in San Dimas (Southern California) is one of the few articles I have read about big settlements reached through mediation. (Link to story here)
Of course, we always read or hear in the news about cases settling or ongoing "settlement talks." And most people know that most cases settle before they ever see the inside of a courtroom. But I have noticed there is frequently no mention of the fact that such settlement talks occurred with a mediator or that the case settled through mediation. I even notice this when I have read in the legal news (i.e., news fit only for lawyers I think) that it was in fact a mediated settlement; but in the regular news for non-lawyers, nothing is mentioned about mediation. We're led to believe a settlement occurred with warring parties, aggressive trial attorneys and no intermediary? After months of expensive litigation? Hmmm... not likely.
Not that I feel a personal slight at this omission by newspaper or television reporters, but I do feel like the profession itself is not getting its due respect for the accomplishments of its members.
Most mediators I know believe that mediation can be useful in resolving almost any dispute. And a significant amount of a mediator's time is spent educating others about the process and benefits of mediation. To that end, it would certainly benefit not only the profession, but also the public, if news stories reported on the process used to settle the case so that people know mediation is a real option.
As a mediator and former litigator, even without reading the story about the San Dimas settlement, I know that a $9 million settlement was not reached over an informal lunch or two between the attorneys or their clients. Such a settlement is almost always going to be the result of a lot of hard work by a skilled mediator as well as the attorneys and their clients. And in this case, it took two days of mediation (exhausting for everyone, I'm sure) to reach this deal. Kudos to the parties and their counsel for reaching a settlement, to the mediator for such hard work and also to the AP reporter who let everyone know this settlement was the result of mediation.
Monday, October 01, 2007
Heated Mediation
This particular mediation, which was in its second session, involved a slightly heated exchange in the first hour. There was no yelling or screaming, but both the volume and tension in the room increased while this exchange took place over about 20 minutes. Because I felt this was a necessary step of the mediation process for these participants, I let the parties move through the heated exchange with only minor interruption from me until they had nothing left to say on the issue.
As a mediator who strongly believes she was born for this role, I intuitively know when - or if - to step in and refocus the parties or simply stop any harmful exchanges in mediation. And I did not feel this particular exchange was harmful. In fact, it was great to get the concerns that were expressed out on the table and it was informative for the parties and for me to see where the parties' emotions were concentrated.
After the heated exchange, I calmly and quietly discussed the concerns I had heard and guided the parties into a productive dialogue of their disputed issues. The volume and tension levels in the room decreased immediately, and I could feel the parties breathing more evenly. Once we moved into our productive discussions, the entire case quickly resolved well before any of us had expected it to.
Afterward, when I privately discussed the mediation with our observer, she confided that her heart had been racing during the heated exchange. Had she been the mediator in this case, she probably would not have had that reaction; she would have had the comfort of knowing she could - and would - guide the discussion and control the process even if she could not control the parties themselves.
I think it's the same thing that happens when my husband is not driving the car. He gets anxious because he's not able to control what is happening when he isn't in the driver's seat. He knows he can't control other drivers, but at least when he's driving he can steer the car where he wants it to go. While I'm ok letting others drive the car, I think I'm more like the observer and prefer the driver's seat when I'm at the mediation table, even if does get a little hot.
Friday, September 14, 2007
"Does the Mediator's Gender Make a Difference?"
I explain that I will not be making decisions for them but will help them make decisions they are comfortable with. If I sense some reservation still, I tell the parties that we can start the mediation as a one-hour "mediation consultation" and if all the parties are not convinced in that first hour that I do not favor one party over the other, but provide equal time and attention to each parties' issues and concerns as I have promised, then we can stop the mediation.
Although there may be mediators out there who do not have natural and/or learned skills of neutrality, I see this skill as essential for conducting fair mediations regardless of my gender or the gender of any of the parties.
If you are looking for a mediator, your goal is to find a mediator with the appropriate level of understanding of your situation and the relevant laws as well as a personal style with which you are comfortable. You may feel that certain mediators may not be best suited for your case. However, if gender is the only hold up you have in hiring that mediator, call the mediator to discuss your concern, get assurances up front, be sure they are followed through with in the mediator's actions at the mediation, and work to resolve the dispute for which you need the mediator. Good luck!