Stop, Collaborate and…Divorce!

The Collaborative Divorce generally describes a holistic approach to a marital break-up that attempts to avoid excessive litigation and trial.  It often is criticized for being too expensive, as being “holistic” may also mean paying an attorney, a child therapist, a CPA and others to contribute to the process.  Often, these same people get paid even bigger bucks to participate in a divorce trial, but more people do not have those kinds of assets that would warrant such an army of experts.

The popularity of collaborative law, however, has grown exponentially.  Perhaps, the growth is due in part to attorneys’ conversion to the process.  Of recent note is the story below – a classic tale where the legal counselor changes her tune after having to walk a mile in her client’s.

http://www.abajournal.com/weekly/article/divorce_lawyer_changes_approach_after_her_own_marriage_crumbles

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The 3 Year-Old’s Divorce

Ever heard parents say that they hope their divorce really messes up their kids?  I’ve not and hope that I never do.  

However, the same parents who want to minimize the impact of divorce on their children may not take the time to learn – whether through really studying or getting an expert’s perspective – what their child’s age means to how they will process the divorce. 

Preparing for divorce or preparing for child-rearing in a divorced-world means “know thy child’s developmental stage.”   Any child psychologist worth their salt will tell you that what a 3 year-old needs in a parenting schedule is different from what a teenager needs.  I bet you didn’t need an expert to tell you that fact.   

But, most parents don’t know what those developmental differences would look like in a visitation schedule.   Parents can, however, put steps in place to address the changing needs of their children in their Parenting Plans – at the start.    

Most divorcing parents can derive benefit from consulting with a child psychologist either in conjunction with building their parenting plan and/or in conjunction with how they will communicate the issues relating to divorce to their children.  Many parents are so relieved to have reached an initial agreement that thinking about how their child’s needs will differ in four years is simply…unthinkable.  But, it is simple to plan for it and create predictability for addressing the child’s growth and changing needs. 

Below is a “Parenting Plan Review” clause that has worked for some co-parents – consider if it will work for you:

Parenting Plan Review:  [Parents] agree to review the parenting time or visitation schedule contained in their Parenting Plan (“the Plan”) by jointly meeting with a qualified child psychologist [if possible, enter specific name or health facility] during the summer vacation before [child’s name] enters [insert the appropriate benchmarks:  pre-school, First Grade, Middle School, High School] for at least one session that will last at least fifty (50) minutes and that this session or initial session will occur during the month of June of that year [or those years].  The review of the Plan required by this clause shall focus only on the schedule of parenting time and/or visitation.   

Following this meeting or the conclusion of the number of sessions mutually agreed to by [the parents] with the child psychologist, [the parents] agree to attend mediation if an agreement regarding the Plan’s schedule of parenting time or visitation has not been reached.  Such mediation session shall occur no later than August 15 of the year in which the parenting plan is reviewed.  Should no agreement be reached regarding the schedule at mediation, the Plan’s parenting time and/or visitation schedule will continue without any change and, having exhausted each step in this process which is triggered and based exclusively on the agreed need to evaluate developmental changes of their child(ren), either parent then may pursue a legal modification to the plan in a relevant court of law and in accordance with the relevant law.   This agreement to mediate before seeking modification to the parenting plan’s parenting time and/or visitation schedule applies only to reasons involving the foreseeable developmental benchmarks of their child(ren) as set forth in this clause and for no other reason. 

With regard to the actions required in this clause, the costs of the session(s) with the child psychologist that fall outside any insurance coverage and/or the costs of mediation will be split evenly between the parents. 

New Panelist Duane Sevillian joins One Mediation

   Duane Sevillian worked for several major insurance companies as a VP of claims and legal prior to becoming a mediator and arbitrator on a full-time basis.  Having over 20 years of experience, including 15 years as an Arbitrator of commercial and consumer construction disputes, Mr. Sevillian brings a substantial range of experience to the table.

Mr. Sevillian currently mediates and arbitrates all civil matters and has extensive experience with issues involving construction, personal injury, divorce and child custody, landlord/tenant issues and insurance contract disputes.   He also mediates personal injury and employment disputes and investigates workplace complaints, including discrimination; employee theft, employee performance, audit reviews, medical and workers compensation issues.  

Mr. Sevillian has completed the Peachtree Road Race thirty-one times, is a Red Cross Volunteer and member of the Atlanta Track Club.  When he’s not running, he is also involved in the AGA’s Alternate Dispute Resolution Section, the Atlanta Association of Insurance Professionals, and makes presentations and writes legal guides.  More about Mr. Sevillian can be found by clicking here.

How to Get an Uncontested Divorce

You’ve seen the billboards and online ads and heard it from the attorney’s office:  for a flat and affordable fee, you can file for divorce, but it must be an “uncontested” divorce.  So, just how do you get one of those uncontested divorces?

Uncontested divorce means that the parties are in agreement about the myriad issues surrounding the divorce.  So, to have an uncontested divorce, there must be agreement.

So, just how do you get to an agreement?   Mediate the separation BEFORE you file for divorce and you may have just increased your odds twenty-fold for getting an agreement that would lead to an uncontested divorce where both parties can avoid enormous legal fees.   Sounds simple right?

Sometimes it can be simple.  Other times, agreement just can’t be had (at that point in time).  However, mediation can be a very useful experience that can get otherwise warring spouses to a place where they can ultimately reach an agreement and work out their separation on their own – sometimes after the mediation is over.   Progress has value.

Simply put, spouses can use mediation as a tool to avoid potentially unnecessary attorney fees, expedite the process, and obtain greater certainty in uncertain times.  Tell a friend.

Father’s Day and Divorce

With Father’s Day upon us, many co-parents may be consulting their parenting plans to figure out whether the Father’s Day holiday trumps the “every other weekend” routine.  For parents who are reading the fine print, it suggests that they have not yet arrived at the place where they again are partners – but partners in parenting.  A real partnership will serve the kids best – and even a divorce that might not have been overly contentious can leave kids with fantasies of reconciliation and hope.

Years after his divorce, Christopher Perry can still recall minute details of the “discussion” about his leaving the home as he entered the divorce process.  However, he still celebrates his fatherhood with pride – “Lots to celebrate on post-divorce Father’s Day” (http://www.cnn.com/2010/LIVING/06/16/dad.tells.divorce.sons/index.html?hpt=Sbin).  He notes an episode three years after the divorce when one of his children asks when he’s moving back… 

Children process divorce differently, but there are patterns as to how they might absorb it based upon their age and developmental stages.  Parents can arm themselves with knowledge of what will be important to their children’s processing of the divorce when the pleadings are filed and as they continue to grow up.  Indeed, this aspect of child development – where the trauma of divorce has left its mark – is something parents should take the time to explore as they begin figuring out “how to tell the children” and revisit as the children grow.

Is it a Coincidence that Mediation is Just One Letter Away from Medication and Meditation.

A wordsmith might find some humor with the fact that the mere addition of a “T” or a “C” to the word Mediation causes a drastic change in the word.  MediCation and MediTation result.  However, the proximity of these words does have some correlation… 

For families that are breaking apart, mediation is a tried process that has good success with resolving disputes amongst the former partners.  True preparation for mediation, mind you, does require a little “meditation” as to what a party wants, needs, and is willing to relinquish in the negotiations.   Most parties will contemplate what they want and what they must have out of a negotiated deal.  However, not all take the necessary step to prioritize what they are willing to lose, sacrifice, or relinquish.  Plain old simple denial is the usual cause of skipping this step.  While most parties mentally understand that concessions or give-and-take is necessary to arrive at most deals, the emotions of the process may prevent parties from acknowledging (and embracing) that they are going to have to give anything or that they would be willing to accept anything less than total victory.

And with tongue in cheek, to fail to list out what a party is willing to sacrifice, the ongoing battle may lead to the need for medication (using the most liberal definition as possible).  So, mediating parties may be best served by taking their medication of meditation in order to make mediation magnificent!

“Fresh Start” Sounds Better Than “Divorce”

Whether you wanted the divorce or not, it came.   Some make the most of a divorce and use it as a “fresh start,” while others cling to the bitterness.  Ultimately, it boils down to what the person chooses to do about the reality that life has and will change dramatically.

With divorce, mediation often intrudes into the non-legal issues of who the wife or husband wants to be after the divorce.  Such an intrusion has a legitimate basis, but many folks have not given a thought to what they will be, who they will be, and what they want out of life after the divorce.   It’s a bit like going to college and not given much thought to what you’ll do after graduation.  At some point, you have to deal with the future and pre-planning can make a big difference.

Divorcing individuals may give thought to what they want their futures to “look like” at the urging of family members, friends, a counselor, and even their attorneys.    For a divorcing spouse who chooses to go through the process without an attorney, they may find that they are ordered by the court to attend mediation or agree to mediation because it suits their situation. 

For those divorcing spouses, and even those who are represented by legal counsel, a mediation coach may be a helpful “tutor” to have prior to mediation.  A mediation coach not only can assist with preparing for the nuts and bolts of the negotiation (e.g., getting records, appraisals, etc.), but also can assist an individual with assessing what they really want and what they really need in order to make their future the most inviting as possible. 

Cynthia Fox explained some of her theories and her trademarked process “The Constructive Divorce” recently.   http://www.mediate.com/articles/foxC4.cfm?nl=267  She is on to something that is too often overlooked in divorce.  Divorce is a major acknowledgement that the status quo is no longer desired, but many have failed to go much further to figure out what it is that they want in its place.

The legal and psychological/philosophical aspects of divorce can both be well served in mediation, a trait that makes a clinical court setting less overtly helpful in many divorce settings.

Why Settle When I’m Winning?

Ever heard of a hollow victory?  When a plaintiff wins his case, he may simply be receiving justice and not what he actually wanted out of the lawsuit.  Litigation costs have the potential to drain the assets of plaintiffs and defendants.  When the money runs out, then a judgment for the plaintiff can mean that the plaintiff walks away with no way to collect damages (meaning money). 

In cases like these, where a winning party won’t be able to get money from the losing party, settlement earlier rather than later should be seriously considered.  Why?  Vindication in a court of law may result in some satisfaction, but it may not result in complete victory where any award of damages and/or attorneys’ fees would be paid.

In a worst case scenario, the winning party receives a court order that they won, but the losing party has no money or assets from which to pay the judgment.  Perhaps, the loser also has the judgment discharged in bankruptcy.  Where does that leave the winner…worse off than when he started, potentially.  Why? Because now the winner has the additional burden of legal fees. 

Parties should consider whether to “cut their losses” when the threat of an un-collectable judgment is at issue.  Mediation of such claims can make the difference between being a losing winner with a pretty piece of paper from a judge or being a semi-satisfied complainant.

Cheapo Divorce? Yippee!

You’ve heard about “uncontested divorces” being a way to get a cheap attorney.  However, most divorcing couples have at least one or two items in dispute that disqualify them from being able to file an uncontested divorce and, more importantly, getting the bargain-basement attorney fee for “uncontested” divorces.  They are so close, but “close” only counts in horseshoes.

Divorcing couples, however, can “close” the gap and reach those discount attorney rates (and a faster track to finalizing their divorce) through mediation. 

Couples themselves can make the choice to meet with a mediator, with or without attorneys, to get all or the rest of their issues worked out for their anticipated divorce.  When couples work out the details themselves, they are in the best position to get an attorney to review the agreement and to finalize the divorce with the best chance of obtaining minimal legal fees. 

The bonus of mediation in the divorce setting?  If an agreement is not reached, the missed opportunity is confidential.  No one knows that the couple was not yet able to work it out themselves and what was said at the mediation is unlikely to be admissible evidence at a trial, should it be required.

In other words, mediating before retaining an attorney is a fast track to a cheapo divorce!  Check out www.mediateB4Useparate.com for more information on the mediation process.

Mediation Costs: Fees and “Flat Rates” and “Per Diem Caps,” Oh My!

On a recent call, a potential customer asked about costs of mediation.  It is a question that comes up all of the time.  I began to feel a bit like a cell-phone sales person, though.

Like most mediation firms, One Mediation’s mediators have different hourly rates that reflect their experience.  On the other hand, One Mediation also has mediators who offer a “per diem” cap on their mediation fees which is somewhat unusual.  Another mediator associated with One Mediation also offers a “flat rate” for her mediation services based upon the value of the dispute. 

All these “pricing programs” can be like sorting through the cell phone plans with unlimited minutes, additional lines, etc.   Don’t panic!

The short story of mediation expenses is pretty simple – there is “Traditional” billing and “Alternate” billing.  Traditional billing involves the parties paying their portion of the mediator’s hourly fee for the time the mediator spends providing them services.  In other words, if the mediation takes three hours and the mediator’s hourly fee is $200, the total bill for all parties will be $600.00 which is evenly split between the parties. 

Sometimes the mediator’s fee is split up differently because the parties have agreed to a different formula.  Additionally, in many settings, one party may agree to pay the entire mediation fee as part of the resolution.  A starting point, however, for mediation costs is to plan on splitting the fees evenly across the parties.

Alternate billing involves things such as “flat rates” and “per diem” caps.  A “flat rate” is a set fee that is paid to a mediator for any and all services rendered in facilitating the mediation of a particular dispute.  A “flat rate” has no correlation to the mediator’s time spent on the dispute.  As such, the parties could mediate for one hour or ten hours, and the rate will be the same.  Generally, flat rate billing is fairly rare.

Another alternate billing format involves “per diem” caps.  In this scenario, a mediator may offer his or her services on an hourly basis up to a certain amount per day.  After that point, any mediation services will not be billed at the hourly rate.  For example, if a mediator’s hourly rate is $200 and his per diem cap is $1,000.00, then a mediation that lasts over five hours will not increase the cost of services provided on that day.  Some mediators are willing to provide such caps, and parties should inquire about them.