Friday, August 24, 2007

Mediation for Happy Condominium Living

Mediation can be an effective tool for helping parties to a lawsuit settle their case out of court. But many mediators are also involved in helping to prevent lawsuits from happening in the first place.

And, even in disputes that might not be headed to litigation, mediation is a great option for settling disputes (both monetary and non-monetary), opening the lines of communication between individuals with ongoing relationships (like neighbors) and promoting the enjoyment of one's living or working conditions, among other things.

An article in New Jersey's Asbury Park Press discusses the usefulness of mediation in "ensuring peace and harmony among neighbors." The article refers specifically to condominium owners, but has broad application to owners and renters of condominiums or any other living spaces.

A few highlights from the article:

"Even if they are restricted in some of the rights they would otherwise have if they lived outside of the [condominium] community, they are still likely to have neighborhood spats, encounter problems with issues that arise from regulations governing their units and the appearance of them, differences of opinion concerning the use of common property and so forth. How are these disputes to be handled?"
"Don't communities want to have processes in place for managing these kinds of disputes, consistent, of course, with law and community rules? Does every unresolved difference, dispute and conflict need to wind up as an "association matter" or a contest in court?"
"Mediation, particularly, can bring into constructive dialogue the legitimate but divergent interests that require reconciliation if there is to be reasonable agreement with respect to how and where and under what conditions people live. Agreements reached in this forum are more likely to be implemented because they have the support of the individuals and groups who, having participated, are committed to making their agreements work."
"But having the authority to decide is only part of the picture. It also means understanding that effective mechanisms for managing differences can strengthen the community bonds that make life in condominium communities more livable, reasonable and, for some particularly, less oppressive. Giving people an opportunity to be involved in developing the rules that govern their living arrangements, and a fair and effective process for airing differences, provides for a quality-of-life difference that can help to build and sustain community norms and values."

To read the full article follow this link.
(By the way, I haven't read the book "Condominium" - but I enjoyed the cover!)

Tuesday, August 21, 2007

Mediation at Wikipedia

Wikipedia - "the free encyclopedia" - is not a reference I would cite in motions to the court. However, in browsing around Wikipedia today, I see that quite a bit of information exists under the search term "Mediation" that might be useful for individuals curious about or contemplating the use of mediation.

Here is the description of "Mediation" provided: Mediation, a form of alternative dispute resolution (ADR), aims to assist two (or more) disputants in reaching an agreement. The key component of mediation is that whether an agreement is reached, and the nature of that agreement, if any, is determined by the parties themselves rather than being imposed by a third party. The disputes may involve states, organizations, communities, individuals or other representatives with a vested interest in the outcome.

Mediators use appropriate techniques and/or skills to open and/or improve
dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial.

Mediation can apply in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and divorce or other family matters.

And here is a detailed table of contents at Wikipedia with interesting information under each category/link. Check it out:

1 History of dispute mediation
2 Mediation and conciliation
3 Mediation in the franchising sector
4 Mediator education and training
5 Mediator codes of conduct
6 Accreditation of ADR
7 Reference links
8 Uses of mediation
8.1 Native title mediation
9 Philosophy of mediation
9.1 The Uses of Mediation in Preventing Conflicts
9.2 Responsibilities Regarding Confidentiality in Mediation
9.3 Legal Implications of Mediated Agreements
10 Common aspects of mediation
11 Online mediation
12 Mediation in business and in commerce
13 Mediation and litigation
14 Community mediation
15 Competence of the mediator
16 When is mediation suitable?
16.1 Factors relating to the parties
17 Mediation as a method of dispute resolution
17.1 Safety, fairness, closure
18 Post-mediation activities
18.1 Ratification and review
18.2 Official sanctions
18.3 Referrals and reporting obligations
18.4 Mediator debriefing
19 Mediator roles and functions
19.1 Creating favorable conditions for the parties' decision-making
19.2 Assisting the parties to communicate
19.3 Facilitating the parties' negotiations
20 Functions of the parties
20.1 Preparation
20.2 Disclosure of information
20.3 Party participation
21 Choice of mediator
21.1 Values of mediation
21.2 Mediation with arbitration
21.3 Mediator liability
21.4 Mediators' liability – in Tapoohi v Lewenberg
21.4.1 Liability in the United States
21.5 Without-prejudice privilege
22 Mediation in politics and in diplomacy
22.1 One of many non-violent methods of dispute resolution
23 Mediation and industrial relations
24 The workplace and mediation
25 Conflict management
25.1 Measuring the effectiveness of conflict management
26 Confidentiality and mediation
27 Global relevance
27.1 Fairness
28 Bibliography
29 See also
30 External links

Tuesday, August 07, 2007

Divorce Mediation & Whether to Divide It All Down The Middle

(Photo from Flickr)

One of the greatest benefits of divorce mediation is that although the laws regarding division of community property are generally clear (i.e., 50/50 for everything acquired during marriage regardless of whose name it's under), the parties themselves aren't required to follow those laws when entering into mediated settlements. While this is one of the same benefits of mediating civil disputes as well, it is sometimes harder for divorcing parties (or their attorneys or mediators) to take full advantage of this aspect of mediation whereas civil attorneys and mediators are generally more open to such alternative/creative options for resolving cases.

Because of the complexity of the Family Code, many gray areas can arise in divorce, including how an asset is characterized (separate versus community property), or how the asset is apportioned (e.g., what portion of the home or 401k is separate property and what portion is community property). Where there is disagreement between the parties regarding the facts or where the law could support different arguments despite an agreement on the facts, mediation is the ideal method for resolving these differences amicably and without litigation.

However, even in cases where there is little disagreement over the facts and little gray area for the parties to disagree about, mediation works very well for parties whose idea of fairness and equity may be different from the law.

The universe of options for resolving the financial issues arising out of a divorce are virtually limitless. In order to achieve their own version of fairness, parties can agree on a separation date that is different from what the court would decide. This one decision influences major issues such as characterization, apportionment and even spousal support.

Parties can decide that an asset (such as a 401k, for example) is going to be one party's separate property despite the fact that there may be a community portion and a separate portion because of the contribution of earnings to the 401k during marriage. Or parties can decide that although stocks were awarded to one spouse prior to marriage, and would therefore be considered separate property, because the parties lived together and supported each other in the same manner as they did once married, that it is more equitable to consider those stocks a community asset. Or that just a portion will be community property. Or a party can decide to waive his right to reimbursements he might be entitled to under the law because that's what feels right to him.

As the mediator in a divorce case, I discuss the relevant laws and how the local courts rule on certain issues but I do not ever give legal advice to my mediation clients. I require my mediation clients to obtain independent legal advice before signing the settlement agreements. When they meet with their attorneys (if they are not present at the mediation), each party already understands their rights and options and feels good that the agreement they reached is fair and equitable for their unique circumstances even if it is quite different from what a judge might order.

Saturday, August 04, 2007

Everyone Remain Calm Part II

In my last post, I wished out loud for a poster of the "Everyone Remain Calm" sign for my office, thinking it would help set the tone for the mediations I conduct here without being too serious. With the message as well as the Transamerica Pyramid in the background, the sign is perfect for my practice.

Lucky for me, my brother Daniel, a graphic designer, happened to read that post and is now sending me my own version of the sign, blown up to a small poster size to hang in my office. Thanks Daniel!