Retirement Transfers with IRAs Upon Divorce

In a divorce, spouses can transfer retirement funds from one spouse's account to the other spouse as part of the property settlement in the divorce mediation. In this post, San Francisco Divorce Mediator Shelley Kennedy describes the steps involved in transferring IRA funds between spouses.

Distributions (withdrawals) from a retirement account are subject to taxes (other than qualified Roth distributions and any amounts already taxed) and there is also typically a 10% penalty associated with early withdrawals if the funds are withdrawn before age 59 1/2. Depending on what type of retirement accounts you have (i.e., pension, 401(k), 403(b), IRA, etc.), there are options available to make these transfers without incurring taxes and penalties. As neutral mediators, we work with both of you to discuss the options available to complete these transfers in a way that meets your goals.

One option in a divorce is to roll retirement funds over from one IRA account to another retirement account, or even one in your spouse's name, which allows you to avoid paying tax on the transfer until the funds are withdrawn from the new plan at the time of retirement and also avoids incurring penalties. Transferring retirement funds in this way is referred to as a "trustee-to-trustee transfer" (or more informally known as an “IRA to IRA transfer”). This involves having your IRA financial institution make a transfer directly from your IRA to another IRA or retirement plan without actually producing cash from the retirement account at the time of transfer.  If you have a 401(k) from a previous employer, you may be able to roll that over into an IRA in order to use it to transfer funds as described here. Once you have agreed to an IRA-to-IRA transfer of retirement funds in your case, the following steps should be taken to carry out the transfer:

Step One: The spouse whose name is on the account contacts the IRA institution/bank to discuss the bank’s specific procedures for a trustee-to-trustee transfer of IRA funds (using this specific language is important to get the right information from your bank):

• What documentation is needed to initiate the transfer? Requirements vary by institution, but your bank will either require a signed agreement (this is usually the signed settlement agreement), a filed court order, or even a certified copy of a filed order. Some banks also have an internal form that can be signed/notarized to initiate the transfer.
• How should the documentation be provided to the bank (email, fax, or in-person)?
• What is the processing time once the required items are received?

Step Two: Contact the legal professional handling your case to ensure that your formal agreements are prepared with your bank’s specific procedures and that all requirements are met. For example, if a certified copy of a filed court order is required, the attorney will need to ensure that the court order contains the information required by the bank and request a certified copy of that order.

Step Three: Provide the required documentation to the bank to initiate the IRA to IRA transfer If the bank will accept a signed but unfiled agreement, this can happen as soon as your agreements with your spouse are signed without needing to wait for the court-approved judgment or order, (which often takes months). Otherwise, you will need to wait until the court has approved the judgment or order and then send the filed documents (or certified copy, if required) to the bank along with any other forms/documents required. Once the bank has the documents it requires, the bank will transfer the IRA funds from one spouse to the other as directed and you’re done!

Author: Shelley M. Kennedy

Mediation in San Francisco, Marin & our newest location in Contra Costa!

We are pleased to announce a third office location for Lawhon Law & Mediation, P.C.! Our main office (and mailing address) remains in San Francisco at Market and Powell. Our second office is in Marin County just off the 101 freeway in downtown San Rafael. Our third office is now in Contra Costa County in Lafayette and just a short walk from BART.

We are excited to be able to serve our East Bay mediation clients as well as our Marin and San Francisco clients and since our three mediators live in Marin, San Francisco and the East Bay, this works well for us too!

We schedule appointments for any of our three mediators for divorce mediation, premarital agreement mediation, postmarital agreement mediation, and consulting appointments for individual clients in all three of our offices so please be sure to let us know which office would be most convenient for you!

What in the World Do You Do When Your Parents Divorce?

I picked up this book, among others, at the AFCC Conference this week (Association of Family and Conciliation Courts where I was speaking on the topic of co-mediation) and am writing here to recommend this to children whose parents are going through a divorce, to parents who are concerned about their children as they go through a divorce, or to divorce mediators or other family law attorneys or therapists who would like to provide a helpful resource to their clients and their families.

"What in the World Do You Do When Your Parents Divorce?" by Kent Winchester & Roberta Beyer is a little over 100 pages in an easily handled 6"x6" book well-designed for children of reading age through at least early teenage years if not later and falls in the "Self-Help for Kids" category. 100 pages may sound like a lot but there is a lot of white space on the small pages and illustrations so it's a quick read for parents. The topics are simple and straightforward and the advice is direct and practical without being patronizing about the feelings that can arise for both kids and parents going through a divorce. Two of my favorite aspects of the book are the recommended books and other resources for kids at the end of every section and the suggestions for "words you might say" for addressing specific issues with parents or other adults as suggested throughout the book.

I wanted to read this book before recommending it (here on this blog and to our clients directly) so I naturally would also suggest that parents read it before recommending or giving it to their own children but hopefully parents will find lessons for themselves and also see how helpful this type of book can be for their children who are experiencing something so much differently than the parents during this time.

Client Checklist for Divorce Mediation

It can be nerve-wracking to walk into a mediator's office to start your divorce mediation and not know what's going to happen. We like to remind our clients that nothing happens in mediation without both parties agreeing to it. In your case, your mediator will likely provide you with some kind of overview of what to expect in your case - sometimes that's a broad overview of the divorce case and other times it's a very specific agenda of what will be discussed in the first mediation. The following is a basic client checklist that may help get you thinking about the issues that will come up and need to be discussed with your spouse as you work together to reach agreements on all of the issues related to your divorce.

1. Court Case: File/serve Petition and start 6 month waiting period; discuss what it means to have a pending divorce or legal separation case.
2. Create plan for living arrangements with transition plan if needed.
3. Custody/Parenting: Issues include physical custody; legal custody; weekly schedule; holidays and special days; co-parenting issues such as communication, childcare issues, new partners, travel/moving, etc.
4. Child Support (monthly and bonus/commission true-ups) and additional expenses for children outside of base child support (health insurance, medical expenses, travel expenses, extra-curricular activities, life insurance, college expenses, etc.).
5. Spousal Support (temporary support; long-term support; tax issues).
6. Spousal health insurance.
7. Assets and debts: Identify (via formal financial disclosure requirements to be discussed) and divide/allocate between spouses including logistics and related issues (house sale issues, household items, vehicles, bank accounts, investments, retirement transfer issues, stock and option vesting issues, business issues, etc.).
8. Tax issues regarding settlement, support, future tax filing related to dependents.
9. How to share/allocate mediation fees, separate attorneys’ fees and fees of other professionals.
10. Estate planning issues (existing plans; new plans; issues regarding children).
11. Resolution of future disputes including options for co-parenting, mediation, private judge.

Holistic Approach to Difficult Situations

I previously posted on being interviewed about Integrative Mediation (see post here). In this post here, I provide more information and resources about this particular model of mediation.

Although most of our mediations are "solo" mediations with just one attorney-mediator guiding a couple or family from start to finish through the divorce or premarital agreement process, there are some situations in which an integrative (i.e., multi-disciplinary) approach can help ensure a successful outcome. In cases where more psychological support is needed, a therapist-mediator can help manage the difficult emotions and help facilitate more rational and therefore productive discussions (which is different from providing joint or individual counseling) and certain therapists have expertise in child development issues which can be extremely valuable to a mediation. Working with both an attorney-mediator and therapist-mediator often provides the right combination of skills and knowledge to help a divorcing couple reach complete agreements together.

Cases which might benefit from this more holistic version of mediation include those with difficult or traumatic events leading to the separation, a highly emotional separation (as experienced by one or both parties), as well as situations in which a separating couple anticipates difficulty in reaching agreements surrounding parenting issues (custody/timeshare schedule, communication, etc.).

There are different ways of structuring a co-mediation which might include any of the following: co-mediating from start to finish of the case; having an initial co-mediation session and dividing out roles and meeting separately; starting as a solo mediation with either professional (depending on the core problem areas) and bringing the other professional in to consult as needed; starting separately with both professionals and working in parallel with the two professionals talking as needed to help move both sides of the process along. These variations can be useful when financial constraints are looming with a pending divorce. However, the cost of ensuring a successful outcome through Integrative Mediation is far less expensive (and generally much more expedient) than going through contested court hearings and trials with litigating attorneys, and putting children through the Family Court Services process and custody evaluations.

To find out more about Integrative Mediation, please visit Integrative Mediation Bay Area (www.IMBayArea.com).

Integrative Mediation: How involving other professionals in your divorce can help

I was recently a guest on Chuck Finney's local public radio show "Your Legal Rights" along with psychologist Stacey Shuster, PhD. We discussed divorce mediation and premarital mediation as well as the integrative mediation model in which two professionals from different specialities join forces to help individuals through difficult cases and keep families out of court. Here is the link to this radio show. If you are considering embarking on a divorce with significant emotional issues for one or both of you, I hope you will consider this as an option to help ensure the emotional issues do not prevent productive settlement discussions.
Sincerely,
Paula M. Lawhon

Our Family Law Mediation Team Has Expanded!

Our Family Law Mediation Team has expanded! We now have three attorneys providing full-time Family Law Mediation services in addition to our paralegal/office assistant. I am in my 16th year of law practice and in my 11th year as a Family Law Mediator. Attorney/mediator Shelley Kennedy has been with our office for 5 years since graduating from UC Hastings College of the Law. Attorney/mediator Meredithe Kreis joined our firm in 2014 after litigating for 7 years following graduation from University of San Francisco School of Law. Our paralegal/office assistant Carolyn Sanborn is a graduate of UC Hastings College of the Law as well and taught public high school for 15 years.

We are all busy helping families through the divorce process in a way that is less difficult and often far less expensive than going to court.  In addition to Divorce Mediation, we also help couples who are planning to get married by working with both individuals to create their own unique premarital agreement together in Premarital Mediation to help build and solidify the financial relationship from the start.

Please feel free to call us to find out whether mediation is right for you and to find out the next steps.

Support for Men in Divorce

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

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

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

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

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

Paula M. Lawhon

UK Promoting Divorce Mediation

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

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

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

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

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

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

Peaceful Divorce Options

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

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

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

Divorce Recovery Coaching

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

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

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

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

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

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

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

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

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

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

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

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

And although I'd like to post articles more frequently, I have to weigh what needs to be done and how much time I have in which to accomplish it. I generally decide that with the limited time I have when I'm not in mediations (with two in one day, there's not much left of me!), I need to use that time to get thoughtful and comprehensive agreements out to clients and complete their cases as promised.

Since the purpose I have in working as a full-time mediator is to help as many people as I can with the highest level of quality and professionalism, I have to resign myself to the fact that I just can't post as much as I'd like. I'd better get back to work now, but I will continue to post when possible!

Timing of Divorce Filings & Finalizing at Year End

At the end of the year, many family law attorneys are busier than usual, often working around the clock to help their clients finalize their divorces before the end of the year. As a divorce mediator, this is particularly true because the couple is working together and are making decisions together - including when to finalize their divorce.

I typically see just a few reasons a couple would want to finalize their divorce by December 31. And, in the last few years, the San Francisco court has required that judgment documents be submitted by the end of November in order to have a 2009 divorce date. This year, they are allowing filings up until December 31, which has given a little more flexibility for divorcing couples to have their cases finalized in 2009. Here are the reasons we work to get our clients cases finalized by year end:

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

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

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

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

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

Mediators With "Issues"

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

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

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

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

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

"Divorce is no longer one size fits all"

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

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

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

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

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

Divorce Mediation Interview on the Rob Black Show

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

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

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

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

Rob Black & Your Money
Channel 4 KRON TV

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


The Rob Black Show
KNEW 910 AM

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

Mediation: the least expensive divorce option

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

When Mediation Doesn't Work

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

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

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

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

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

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

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

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

Family Court called "Needlessly Adversarial"

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

Here is an excerpt:

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

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