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any amounts already taxed) and there is also typically a 10% penalty associated with early withdrawals if the funds are withdrawn before age 59 1/2.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account, or even one in your spouse's name, which allows you to avoid paying tax on the transfer until the funds are withdrawn from the new plan at the time of retirement and also avoids incurring penalties.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.

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 in Paradise

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

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

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

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

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

Here is a link to the full article.

"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

Divorce Mediation vs. Collaborative Law

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

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

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

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

Is Mediation Binding?

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

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

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

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

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

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!

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."