When Does Mediation Really Start?


    By JoAnne Donner

People tend to believe that mediation begins when all concerned parties meet in the mediation room and take their places at the mediation table.  The truth is that mediation begins when disputing parties agree to participate in a private mediation or when they are notified by the Court to appear in a mandated mediation session.

This pre-mediation phase is frequently overlooked and underestimated for the potential power it has over the outcome of a mediation session. 
Would you perform in a stage play without holding a dress rehearsal?  The answer is obviously, “No.”  Yet, people go into mediation everyday with very little or no preparation for what could be one of the most important days of their lives.  This is even more significant when you consider that decisions made during mediation can have critical, life-changing effects for not only the disputants, but for their families as well.
Why is the lack of thorough preparation for mediation so prevalent?
One reason is that while we all have seen frequent television and film portrayals of litigation and courtroom trials, mediation is a relatively unfamiliar form of dispute resolution to most people.  The need for prepping witnesses and clients for trial and depositions is widely expected and accepted, while detailed pre-mediation preparation and coaching receives little attention and has much less importance attached to it.  The result is that people attend mediation sessions unprepared to deal with the dynamics of mediation and the decisions that will dramatically affect their future and their well-being. 
Another reason is that professionals who assist disputing parties with mediation are typically very familiar with the mediation process.  Understandably, it’s easy for them to overlook the fact that mediating parties, unfamiliar with the process, can become overwhelmed by the many challenges inherent in a mediation session.  This is especially true when emotions kick in and tensions run high.  Thinking clearly in a charged atmosphere is difficult.  Successfully handling the potential for emotional fall-out is a key area that professional mediation coaching is designed to address.

Other landmines that await disputants include the lack of pertinent paperwork, unorganized paperwork, not understanding the significance of important documents, losing focus during the session, and not being prepared to “tell your side of the story” in a clear, concise and persuasive manner.  These are all issues that can be addressed in pre-mediation preparation.

Experience shows that when asked about their mediation experience, people frequently respond that they wish they had been better prepared.  And, they report, if they had received more in-depth coaching, they feel they would have realized better results at the mediation table.  In fact, a common post-mediation response is, “I just wanted to get it over with.  I felt pressured and I felt overwhelmed.”

If you are a disputing party heading into mediation, “just wanting to get it over with,” is selling yourself short.   Mediation is your chance to be heard and to take an active part in creating a resolution that works for you and meets your needs.   Increase your chances for mediation success by ensuring that you receive the detailed, in-depth preparation you deserve.  Professional mediation coaching can prepare you to help steer your mediation to the win-win proposition it can be.


Three Post-Divorce Tips

Divorce mediators cannot provide either spouse legal advice or financial counsel.  However, there are issues after an agreement is made or after the divorce decree is issued that aren’t regularly highlighted.    Three of these lesser known “post-divorce hiccups” are noted below:

1.    Name Changes.

To the spouses that change their names in conjunction with their divorce, be aware of the practical implications of this shift.  Not only will you be spending time changing your name on licenses, credit cards, bills, employers’ tax forms/paychecks, and more, you also will need to ensure that the Social Security Administration has the “same name” you use for the tax return you submit to the IRS.   A mismatch between the IRS and the SSA can equal TUMS.

2.    Wills & Beneficiaries.

Congratulations, you are divorced.  However, your divorce decree generally will not automatically result in amendments to your beneficiary designations on insurance policies, bank accounts, retirement plans, and more.  Get busy gathering those forms and make the changes, unless keeping your ex as a beneficiary is part of the decree or you really do want him or her to be the beneficiary.

And, a word about your will.  If your divorce decree does not invalidate your will (assuming you had one prior to your divorce), you just may want to re-evaluate whether you need or want a will that reflects your current and new circumstances.  While putting off the drafting and execution of a will is fairly typical, it is risky when there are minor children involved.

Consider, if money is tight, looking into a “Pre-Paid Legal” scenario for getting your estate in order (and having a bank of attorneys to deal with legal questions, parking/speeding tickets, and more) for at least the first year post-divorce (and in particular if you have teenagers).  Many Pre-Paid Legal plans can also include identity theft protection and restoration services and tax audit services – services that may be worth their weight in gold and platinum during the detangling period with your ex.

3.   Insuring “Financial Support.

If you are receiving alimony or other spousal support or if child support is part of your divorce, insuring the life of the person paying those forms of support should be considered very, very seriously.   If feasible, disability insurance may be another layer of protection against financial vulnerability, too.   Good legal counsel will raise these issues, but such insurance is not free and some families have to run the risk of moving on without it.  If you can afford it, get it.


Workplace Investigations & Email

We’ve seen the TV shows and movies where a computer forensics expert uncovers some super secret electronic file or finds the files that “were deleted.”    Oftentimes, uncovering electronic communications that show workplace misconduct do not require such an expert, rather just a quick search of the email server.

Employers that routinely allow (or expect) employees to be available or to communicate via email should evaluate whether workplace policies are clear about the expectations on how employer-provided email is used, not only to be sure that the employer complies with all laws, but also to ensure that the availability of the email account is not abused.

Oftentimes, employees will use employer-provided email accounts for personal or for matters unrelated to work.   While a personal email here or there may not be problematic, the mass forwarding of jokes, cartoons, videos, and more can be problematic from a cost perspective, as well as a workplace management perspective.

For employers who have limited server space for email, frequent emails of jokes and more throughout segments of the workforce simply “takes up space.”   Talk to your IT department or consultant – with an election year coming up, there frequently is a spike in “editorial emails” that can cause issues or all-out problems.  Learning that there is a need for “another server” when the problem is “social not-working” can be a real dollar saver.

As a workplace management issue, emailing jokes, videos, and more is generally not professional and decreases productivity.   What is worse is that many times, these “joke” emails are ones that may only be funny based upon stereotypes of certain races, sexes, etc.   When those forms of humor are passed around a workplace, they may offend an employee, causes a decrease in morale.  Worse yet, the email is blown-up in front of a jury as evidence that the manager who sent it really does harbor racist, sexist, or other unlawful animus.   The problem is prevalent and often makes the news.

For employers with complaint policies regarding discrimination, harassment and/or retaliation, investigations of such complaints now involve review of email accounts, if not also review of other electronic records of cell phone calls, IMs, text messages, voice mail messages, and more.  Indeed, Human Resources professionals are going to these electronic records of communications even before talking to the individuals themselves.  Why?  Because what is captured in these electronic records are often much more objective measures and very indicative of feelings, beliefs, and misunderstandings than memories.


“Reverse” Sexual Harassment

Hear the term “reverse sexual harassment” and most folks recognize that this phrase describes sexual harassment that is “female to male.”   However, it is still plain old “sexual harassment.”

While such reverse sexual harassment has resulted more than a few plot lines in movies, it has been viewed as situational comedy because it seems to buck the stereotype of the aggressive male in hot pursuit of the dewy female.   In the real world, it is not so funny.

The EEOC and the law do not buy into the idea that only women can be sexually harassed.  The law is far broader and prohibits harassment in the workplace that may be male to female, female to male, or same-sex/gender.  A recent example of this sort of role reversal demonstrates that Title VII protects individuals from harassment of a sexual nature in the workplace, no matter the victim’s sex (or sexual orientation).   Indeed, some legal experts suggest that employers should be even more wary of a “reverse” harassment or discrimination scenario where juries may find cause to issue greater punitive damages – in part – because what’s good for the goose, is good for the gander.

The moral of the story for employers is to take all complaints of sexual harassment or related inappropriate conduct seriously by conducting an appropriate and reasonable investigation, whether using an internal investigator or an external workplace investigator, like those at One Mediation.



Isolation of Seniors in Need

Elder abuse.  It’s a tragic reality, and one where family members of the victim often feel extreme levels of guilt.  Why?  Because the warning signs were there, but no one intervened.  Again, why?

With elder abuse, often it is a family member who is abusing or neglecting the victim.  Often, the family “caregiver” provides friends and family information that they believe will appease them or prevent them from looking closer at what is actually going on.  Too often, the family “caregiver” will take steps to prevent others, to include authorities, from having contact with the victim.

Too often, they get away with it.  Recently, a case of elder neglect was uncovered in Georgia.   In that case, the adult daughter who was caring for her mother was arrested and the media’s reports suggest that mental health issues may have played a prominent role in the incident.   Too little.  Too late.

When a family has aging loved ones, family members should meet to discuss the future and how they would like to handle the aging loved one’s needs…before the needs arise.  Contact a qualified Elder Mediator to help your family address long-term care issues – the legal, the financial, the medical, and the emotional aspects all can be addressed and provide added assurance that your family never makes headlines.