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


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:


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.


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.


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!

Monday, June 09, 2008

Divorce Mediation in the Wall Street Journal

There was a great article in the Wall Street Journal last week touting the benefits of mediation and other collaborative methods of resolution of divorce and family issues over court litigation. Here is the link to the article here.

The article highlights the lasting negative effects on children from a bitter divorce as at least one reason to keep the divorce out of court. The Wall Street Journal also sets forth some numbers that divorce attorneys and mediators know very well and that couples going through a divorce discover all too soon: The average mediated divorce costs less than $7,000 and the average collaborative divorce costs less than $20,000, while the average litigated case costs $78,000!! And that last figure is most likely a national figure since fully litigated cases in California (with battling experts, etc.) will run more like $100,000 to $150,000.

This explains why one of my favorite mediators (Rodney Johnson in Marin County) asks couples debating between divorce mediation/collaborative law or traditional representation by battling attorneys what they want to pay for - his children's college education or their own children's college education. The choice is yours.

Wednesday, June 04, 2008

Life After Divorce Mediation: eLoveAgain

I am a family law mediator which means I work with couples at the beginning and the end of their most significant relationships. I work with engaged couples to prepare balanced prenuptial agreements (to minimize disagreements in the event of a divorce) and I work with couples who are divorcing but who do not want to waste time and money fighting in court.

Because of my work, I am always interested in finding new resources to help my clients regardless of the particular stage of their relationship they may be in. So, I was quite interested when a fabulous chiropractor colleague/friend, Dr. Laura Sheehan, referred me to eLoveAgain.

This site truly offers what it promises: "Your onestop relationship recovery guide and free e-counseling support source." The site offers events for singles, self-improvement and wellness, counseling resources, and a whole host of other goodies. Here is a short excerpt from their home page:

"You are entering a period of transition. Life constantly changes for everyone, everywhere at every moment. This site has been designed to assure you that you are not alone. Millions of people right now, at this very instant, are ending relationships and will soon begin new journeys.
We understand what it takes to trust again. It takes time, work, and a little help. We know that by connecting you to new services, ideas, and concepts you will broaden your world and ensure meaningful new experiences."

It is a truly unique site with great information and resources. Check it out!

Tuesday, May 27, 2008

Marital Mediation vs. Divorce Mediation

I have heard of mediators specializing in keeping couples together but until now I have not understood fully how it works or how it is different from traditional couples therapy. Here is a link to an article I came across about a marital mediator in Westport, Connecticut, which provides more insight into this interesting area.

As a divorce and family law mediator myself, I am always interested in providing other avenues for couples to explore to help keep the marriage together. I always ask couples if they have tried marriage counseling, whether there were aspects of the therapy that either of them found helpful, etc. As the person who meets with both individuals at the end of their marriage, and as the person who will be guiding them through their divorce, I want the couple to know that they have tried everything they could to stay together before deciding on divorce. If couples have not visited a counselor together, I suggest it if I think it might be useful (although there are times when such a suggestion is simply inappropriate, and is therefore left out of my discussion).

If anyone has been through a marital mediation process, I would be interested in hearing about it because nothing is better than finding out that a potential divorce mediation couple will not become clients because they have worked out their issues with another professional and will be staying together for the right reasons. Here is the full article:

Counselor offers different way to help heal a marriage


WILTON — For those couples who don't think that traditional marriage counseling is for them, Wilton mediator Susan K. Boardman has an alternative solution for them to try.

Boardman uses Marital Mediation to help couples who come to her Westport-based practice, a counseling technique that uses mediation to create new relationship behaviors and better communication and understanding, she said.

"Marital Mediation uses the same techniques as divorce mediation but the goal is different," said Boardman, who has a Ph.D in social psychology. "Marital Mediation works through conflict to try and create new ways to prevent divorce or separation."
According to Michael Becker, an attorney and accountant who specializes in divorce mediation in Wesport, there is a very small bridge between divorce mediation and marital mediation.

"I think that the goals and skill set for Marital Mediation is probably identical to divorce mediation in a way," said Becker. "They both identify and organize the problems couples are having in their relationship and help keep couples calm and diffuse conflict."

Boardman has had a private practice for the past six years as a family mediator, and has been using marital mediation for the past three years. According to Boardman, Marital Mediation comes up with a more concrete way to fix a couples problems.

"I find that in marriage couples either ignore problems or just sit on them," said the Wilton resident. "With Marital Mediation I find out what is causing the problem, like other mediators or therapists do and then make a written contract for the couple that will work out specific ways to solve the problems."

According to Boardman, there are four different areas that make up Marital Mediation. There is the perception of the problem and how to change it, coming up with a way to negotiate that problem, finding out how each person perceives themselves and the perception of the solutions to fix the problem.

Boardman says she uses different techniques for Marital Mediation such as using a "feedback loop," which is when couples will take one hour in their week to sit down and talk to each other about how they feel. She says she also uses flashcards in her sessions, with a patient talk to his or her partner and holding up a red, green or yellow card to show the emotions they are feeling at the time.

"Marital Mediation is really a different kind of therapy," said Boardman. "It lets couples test out all different ways to find a solution and ends up being a shorter process than other therapy."

According to Boardman, the Marriage Mediation process takes anywhere from two to six, two-hour sessions, which are usually completed in three to four weeks, depending on the couples' schedule. There are also various couple-related conflicts which Marital Mediation can help, such as career issues, lack of communication, intimacy issues, financial disputes and many more, she said.

"I help people develop new behavioral guidelines, rather than trying to figure out the psychological explanation of why couples act the way they do," said Boardman. "It gives couples the ability to eventually solve their own problems."

Susan Boardman's counseling practice is located at 252 Post Road East in Westport. She also has a Web site, www.maritalmediationworks.com, where visitors can learn more about Marital Mediation.

"I really believe that Marital Mediation works," said Boardman. "It's so simple and generates many options for couples, it helps couples focus on the future and stay in the future."

Thursday, March 13, 2008

Doctors & Lawyers Mediating Malpractice Claims

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


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."

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
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.