Invitation to Private Divorce Mediation

The phone rings at One Mediation.  The caller wants to mediate the divorce, but has no idea whether the other spouse will do it.  Mediation requires both spouses to agree to participate in the process, so now what?

Private divorce mediation firms often offer simple solutions.

At One Mediation, for example, the office will contact the other spouse to extend an invitation to mediate and to share divorce mediation resources.  Sometimes this is done by email with an invitation to contact the office to answer questions and more.  Other times, the inviting spouse lets the other spouse know that One Mediation will be giving them a call about a mediation appointment.  Sometimes getting the conversation started is the beginning of productive dialogue and resolution.

Communication issues?  A mediator can help.  Call to find out more or register for divorce seminars in your neighborhood.  April 17th, One Mediation will be offering its “Crash Course Divorce” that provides a solid overview of the legal process of divorce in Georgia.  Call 404-720-0599 or go to http://www.onemediation.com for more information.

Private Divorce Mediation: Nuances

Actually, many options exist for getting a divorce – often, it just is a matter of how much time at the courthouse a couple will spend.  Private divorce mediation is one way that many couples spend minimal time at the courthouse to obtain their divorce decree.

Private divorce mediation refers to the mutual decision of a couple to participate in mediation in order to resolve the issues of their divorce.  Often, private divorce mediation occurs before a petition is filed with any court.  In other situations, the petition is pending with the court, and the couple has decided to mediate without any order from the court directing them to do so.   Which time is right?  Well, neither.  But, one time may be more conducive to successful negotiations than the other depending on the various nuances of the situation.

Nuances:  Acceptance and Information.  

Acceptance.   There are degrees of acceptance of divorce.   For purposes of private divorce mediation, it simply has to be sufficient that the couple can and will work on the issues instead of on each other.

Where both spouses have a high level of acceptance that the family will change drastically, there often is a commensurate degree of motivation to get to the other side.   Couples who are separated and living apart often have a better understanding of the change because they are living it every day when they wake up and every night when they go to sleep.  The separation is increasingly familiar.  They know what it is costing to live without the other spouse, both financially, socially, and logistically.   This familiarity with the impending future sometimes diminishes the fear and hurt of the break-up substantially.  With emotions running lower, couples often are in a better position to make more rational decisions about divorce – whether in mediation or other settlement discussions.

Information.  To negotiate about anything, you have to know what you’re talking about.  Excluding the children’s issues, in the divorce context, the relevant information that parties typically must obtain include inventories of assets and debts and valuations of them, post-divorce budget projections, and financial and legal information.  It’s no small feat to obtain all of these items.

Most individuals will contact an attorney first.  Consulting an attorney is a wise move, but how, when and why you consult one can make a significant impact on  the bottom line.  You can retain an attorney to represent you in litigation (e.g., big retainer), to handle a defined project (e.g., review the settlement agreement your spouse’s attorney sent over), or to give you legal advice (e.g., the house is titled in his name, does that mean it is his?).   Family lawyers do not come cheap; use them wisely.

Some individuals will get organized.  They run credit reports to get an idea of the debts (all those pesky credit cards), they summarize financial account information with statements into three ring binders, they check Kelly Blue Book for the cars’ values, prepare budgets, price-shop for health insurance, obtain valuation statements of pensions from HR, etc.  Getting organized can be taxing (oh, and they get tax returns).  In the midst of emotional overwhelm, gathering enough steam to get organized can be difficult.

For many families, private divorce mediation is part of their process to get organized on certain issues because they identify “what needs to be done” before they can make a specific decision.  At mediation, it’s not unusual for HR to be called to get COBRA costs, for some pricing on day-care centers to be obtained, or to pull up the online banking records.  So, perfect preparation is not always necessary before divorce mediation occurs, but it is helpful.  On the other hand, some couples will not schedule private divorce mediation until they have greater certainty about the assets and debts at issue.  Therefore, some divorcing couples need the power of the court system to obtain sufficient information to even broach mediation or settlement negotiations:  one spouse will not tender tax returns of the business, spouses are at odds over whether there is or isn’t a retirement fund, one spouse believes the other has been siphoning off money to someone to hold for them until after the divorce concludes, etc.

Many families live paycheck to paycheck.  The prospect of off-shore accounts, hidden trust funds, and more is unlikely.  More likely may be the undisclosed credit card or title loan.  As such, many couples readily have the information they need to discuss the issues of divorce.  If they do, then the appropriateness of private divorce mediation may simply turn on whether they are emotionally ready (see Acceptance above) to do so.

One Mediation is located in Atlanta, Georgia and provides a professional panel of divorce mediators, seminars, and programs for families facing separation and divorce.  For more information, call 404-720-0599 or email contact@onemediation.com to schedule a time for a private divorce mediation or to extend an invitation to mediate to your spouse.

 

Teeing Up A Successful Divorce Mediation: Five Tips

Divorce mediation is a process, an opportunity to work out a resolution of some or all aspects of a divorce.

Not all divorces can be resolved without a court, but many do work out their own solutions for a variety of reasons:  cost of litigation, time spent in the legal process, the stress of the divorce process itself, the needs of the children who need stability sooner rather than later….and the list goes on.  So, what contributes to a successful divorce mediation?

Tip One.    Be prepared.

Be prepared to discuss dollars, values, schedules, and more.  Even if you have a legion of divorce professionals representing and advising you, create cheat sheets.  Bring a calendar.  Bring a calculator.  Have a working knowledge of the moving parts.

Tip Two.  Be motivated.

When both parties to a divorce mediation are motivated to move on with their lives, bring stability to the children, or at least some desire to get out of a rut, the results in mediation – where everyone has set aside time to work out the issues – can be swift.

Tip Three.  Bring Three Ideas for You and Three Ideas for Him/Her.

Before you get to the mediation session itself, a party should have sketched out at least three scenarios that would be acceptable to him or her.  Then, do the same from the other party’s perspective.  This second step is what professional negotiators do to maximize their strategy and to consider ways to encourage/entice the other side to go along with their proposal.  It is often the step skipped by divorcing parties (and, tragically, by their legal counsel).

Tip Four.   Let Go of  “Why.”

Too often, parties in mediation spend time in the dispute as if they were still married, trying to convince the other person that their reasons for X is right.   In divorce mediation, the parties do not have to agree on “why” they have agreed to do something.   That can be liberating.

Tip Five.  Bring Comforts.

Mediation sessions can be long.  Bring snacks, beverages, medicines, lower-back pillow for office chairs or other items that you may need to be physically comfortable.   Also, know that you can suspend the mediation and reconvene later if an emergency occurs or you become too tired to make good decisions.

There are other significant steps that can be taken to tee-up a successful mediation, but these five tips above certainly can put you on the path to making the most of your opportunity at your divorce mediation.

 

Divorce Mediation: Options When “The House” is Underwater

Often a divorce will involve a decision about “who gets” the marital residence (and any mortgage associated with it).  The marital residence usually is one of the largest assets for any family, so it can take a prominent position in settlement negotiations and/or what a judge may do with it.

underwater-mortgage-300x200Selling the marital home and dividing up the proceeds of the sale used to be an easy proposition, but not now.  Selling the marital home can be hard in divorce, particularly where so many more homes have mortgage balances that are greater than the potential sale price.  When this occurs, the home is often described as being “underwater,” meaning more is owed on the home than it is worth.

In divorce mediations, the issues related to a marital home that is underwater can be tough, but not impossible.  Where a couple decides not to sell the marital home that would result in immediate debt, some common options include:

  1. Refinancing the mortgage in the name of the spouse who will retain the marital home;
  2. If refinancing the mortgage is impractical, typically the spouse who keeps the house will also agree to pay the mortgage and protect the non-paying spouse with a reimbursement and indemnification clause;
  3. Consulting with a Financial Professional regarding the use of retirement benefits, such as 401(k) accounts, to address the mortgage;
  4. Consulting with a tax professional or attorney regarding the tax implications of the spouse who may pay alimony and child support to the other spouse when that paying spouse pays for the mortgage on the other spouse’s home where the children primarily reside;
  5. Consulting with an attorney regarding the pros and cons of foreclosure and/or bankruptcy.

There are other options and rarely a perfect answer to these financial quandaries.  The good news seems to be that the economy is starting to show signs of recovery, rumblings that may make the “underwater” market less deep.

Should You File for Bankruptcy before or after Divorce?

Just DivorcedDeciding to file for either bankruptcy or divorce can be a difficult decision to make, but facing  filing for both of these can add a whole additional layer of complexity and frustration, especially when trying to determine when it is best to file for both. This is a complex decision to be made, as the effects of both filings will have long-lasting effects on a person’s life.

Considerations

Deciding when to file for bankruptcy and divorce is especially complex because of the number of options available and the many ways that these decisions will affect each other. As such, certain factors that you should take into consideration include:

  • Dividing your property during divorce – dividing property during a divorce is often a contentious and frustrating process. Thus, for those with many assets and properties, choosing to file for bankruptcy and liquidate some non-exempt assets (if filing for Chapter 7) can make this process a bit easier. If you feel that this could benefit you, you may consider filing for bankruptcy before filing for divorce.
  • Debt liability / responsibility – while filing for bankruptcy after a divorce may seem like it will alleviate one spouse’s responsibility for paying off debts, this is not always the case. Although debts can be divided and this can be upheld in a divorce agreement, debts that were accrued during the marriage are considered to be the responsibility of both spouses, even after a divorce.
  • Bankruptcy qualification – while almost anyone can file for Chapter 13 bankruptcy, a person or couple needs to qualify first to file for Chapter 7 bankruptcy. There is a limit for the maximum income a person or couple can have; thus, filing jointly or separately can make a significant difference in qualifying for this form of bankruptcy.

Additionally, you and your partner should talk about and consider which form of bankruptcy would be best for your situation. While you do need to qualify for Chapter 7 bankruptcy, your eligibility could be affected by your marital status. Additionally, Chapter 7 bankruptcy can be completed much quicker than any other form of bankruptcy. On the other hand, Chapter 13 offers a much longer period for repayment and is available to almost anyone.

About the author….

Abby Pearson is an established blogger who regularly contributes articles on a wide variety of issues such as divorce, marriage, bankruptcy, and legal matters. She is largely concerned with helping those seeking divorce assistance get the information and support they need from a divorce lawyer.

2013 Divorce Hot Shot Series (Short Presentations for Real People)

 2013 Divorce Hot Shot Calendar

Registration at www.visionsanew.org ($25 per session, Presenters & Location Addresses Online)

January

Tues., January 8th (Perimeter, 6:30-8:30 p.m.)

“Divorce Orientation”

 Tues., January 15th (Buckhead 7:30-9:30 a.m.)

“Divorce Orientation”

Tues., January 22nd (Buckhead 7:30-9:30 a.m.)

“How Child Support Works”

Tues., January 29th (Perimeter, 6:30-8:30 p.m.)

“Divorce Options & Avenues”

 

February

Saturday, February 2nd (Buckhead 10 a.m.-Noon)

“Children Weathering the Storm”

Tues., February 5th (Perimeter, 6:45-8:30 p.m.)

“Divorce Orientation”

Thurs., February 21st (Buckhead 7:30-9:30 a.m.)

“Divorce Orientation”

 

March/April

Tues., March 5th (Perimeter, 6:45-8:30 p.m.)

“Lies & Litigation”

Thurs. March 21st (Buckhead 7:30-9:30 a.m.)

“Divorce Orientation”

Thurs., April 25th (Perimeter, 6:45-8:30 p.m.)

“What if Someone Dates During Divorce?”

May

Tues., May 7, 2013 (Buckhead 7:30-9:30 a.m.)

“Divorce Orientation”

Tues., May 21, 2013 (Perimeter, 6:45-8:30 p.m.)

“5 Common Financial Mistakes in Divorce”

June

Tues., June 11, 2013 (Perimeter, 6:45-8:30 p.m.)

“When the Pie Exceeds A Million Bucks”

Tues., June 25, 2013 (Buckhead 7:30-9:30 a.m.)

“5 Common Parenting Mistakes in Divorce”

August

Wed., August 21st  (Perimeter, 6:45-8:30 p.m.)

“5 Common Legal Mistakes”

Tues., August 27th  (Buckhead 7:30-9:30 a.m.)

 “Divorce Orientation”

Wed., August 28th  (Perimeter, 6:45-8:30 p.m.)

“Finding the Money & Honey”

September

Tues., September 10th  (Buckhead 7:30-9:30 a.m.)

“Divorce Orientation”

Sat., September 21st  (Buckhead 10 – Noon)

“Children Weathering the Storm”

 

 

Does a Divorce Mediator Always Recommend Mediation?

Does a Mediator Always Recommend Mediation?

Andy Flink and JoAnne Donner CDFA

            As mediators, we are frequently asked about how a mediation session works.  By the time we finish explaining the process, everyone has the same response…..that it’s a terrific alternative to litigation and when two people are embroiled in conflict it’s their best option.  But is mediation always a good idea?  Do we always recommend mediation to parties in dispute?  You might be surprised to know that every so often, deciding to mediate two willing parties in a squabble turns out to be a bad idea.

If both sides are openly willing to mediate, why would there be a situation that, after anywhere from one hour to ten hours, everyone wonders why we bothered to meet in the first place?  Here are a dozen reasons why mediation can be unproductive and when it may have been best not to meet at all:

  1. Missing Information.  Rarely is a case resolved in mediation where there is a lack of discovery or incomplete, unverified financial information. There is already mistrust in the room; this simply adds to it.
  2. Lack of respect.  Knowing how to “act” in a mediation session is important.  We tell mediation coaching clients to pause and consider everything the other side is asking for and offering.  If for no other reason than to appear that you are being respectful and considerate of their position, whether or not you really are.  Parties in mediation have a tendency to “show their hand” through body language, tipping off the other side that respect is merely a song by Aretha Franklin.
  3. Unrealistic expectations. “I get everything and you get nothing.”  Once we mediated a case where the plaintiff demanded a 90/10 split as equitable division because “He was the one who worked all the time.”  This kind of extreme thinking is not unusual but can send negotiations into the no-settlement zone.
  4. Bad timing. Fortunately, courts send almost every case through the mediation process.  Unfortunately, it might be before the disputing parties have completed discovery or are emotionally ready to consider settlement.
  5. It’s a fishing expedition.  The other side shows up for the sole purpose of learning everything they can about what the other side’s position is and why.  They have no intention of settling…and sometime during the day you figure this out.
  6. Subject-matter expertise. When a divorce mediator is asked to do landlord/tenant  mediation or a personal injury lawyer represents a client in divorce mediation, it may not work very well.  Typically, there is no substitute for experience and expertise in a specialized niche.
  7. A missing party.  Virtual communication technology is impressive, but when one party is 3,000 miles away in Seattle and the mediation session is in Atlanta, phone or Skype doesn’t always reveal subtle cognitive or behavioral clues.  It may be difficult to know what the long-distance party is really thinking, since much of what mediators look for are not only verbal cues, but physical ones as well.
  8. Schedule conflicts.  You’re seven hours into a mediation working towards a resolution and suddenly one of the parties declares they have a prior commitment.  While they had plenty of opportunity to reveal this information earlier in the day they chose not to, sending the mediation into a tailspin.
  9. Lack of motivation.  A party prefers to maintain the status quo and strongly resists settlement.  Sometimes this occurs where leverage is solely on one side of the table, or where one party has “everything to gain” and “nothing to lose” by keeping financial and emotional circumstances the way they are for as long as possible.
  10. Polarity or a desire for vengeance.  Rarely do couples in divorce mediation get to divorce at the same time for the same reasons.  One party may feel a need for the other party to “pay dearly,” whether or not this serves their best interests.  When vengeance is a prime motivator, the ability to be fair and reasonable is dramatically compromised.
  11. Inflexibility.  Regardless of the truth, one party sees the facts in a completely different way than the other.  If one party’s parents funded the purchase of the marital home, they may insist that they are entitled to 100% of that asset with no consideration paid to the facts, the law, or equitable division guidelines.  Parties’ perceptions become their reality and, frequently, no matter what the facts are they refuse to alter their position.
  12. History of high-conflict.  Relationships that have been controlled by antagonism,   intimidation, emotional abuse, or domestic violence, can make mediation the wrong       choice.  While mediators are trained to effectively address power imbalances, when one party’s emotional or cognitive competencies are significantly impaired due to past abuse,  a suitable and durable outcome is unlikely.

For mediation to work, it takes a desire for a timely, cost-effective resolution that will keep the dispute out of court.  Key motivators are a willingness to cooperate and to focus on a fair result for both sides.   For couples who will play by those rules, and who want what’s best for the children and the future of the re-defined family, mediation can be the right way to navigate the pitfalls and possibilities of divorce resolution.

Options for Amicable Divorces – Seminar in Atlanta

Whether you like it or not, divorce is in your future.  So far, you and your soon-to-be-ex have been working things out pretty well, all things considered.  Maybe one of you has met with an attorney.  Maybe one of you has met with a CPA.  Maybe neither of you has met with any professional.  But, you are committed…at least for now…to working things out amicably.

Can it be done?  An “amicable divorce”?

The answer is:  Maybe.   To find out whether your divorce will fall on the “contested” or “uncontested” side of the fence, come to this information-packed seminar to learn about options, resources, and what kinds of professionals can help you  make informed decisions that may best lead you to an amicable divorce.

Seminar is $20 per individual and $30 for a couple.  Register by calling 404-720-0599.   The seminar will be held from 8:00 a.m. to 9:30 a.m. on Wednesday, October 17, 2012 and again on Thursday, October 25, 2012 at The Fryer Law Building (intersection of Lenox Road and Buford Highway), 70 Lenox Pointe, NE, Atlanta, Georgia 30324.  For more information or other questions, feel free to email at contact@onemediation.com .

Can there be a “Mediation Friendly” Attorney?

A recent article interviewed a family lawyer in California.  In the article, the attorney addressed poorly thought-out settlement agreements, an issue in every state.   He also described a certain brand of family law attorney:  a “mediation-friendly” attorney.

What is a mediation-friendly attorney?  Many Georgia attorneys’ websites proclaim their practice as cooperative or collaborative (though they are not certified in “Collaborative Law”).   While there probably is no perfect definition of this term, the sentiment appears to be that there are attorneys who are more willing than other attorneys to advise clients to be open to resolving family law disputes through mediation, negotiation, etc.

Is advising a client to be open to a negotiated settlement a breach of an attorney’s ethical duty to be a zealous advocate?   If so, when does that occur (and does it make the attorney “mediation friendly”)?   Comment here.

Is Divorce Mediation for You?

Mediation is a process.  It is a journey.  It is not a journey that is for everyone…until they are ready.

A recent blog hits on three “red flags” that divorce mediation may not be a process that is right for you.   Sometimes mediation is a process that is right for couples once the individuals “are ripe” for resolution.   What does that mean?   Parties that succeed in mediation often have these characteristics, among others:

  • A desire to get out of the current state of affairs and move forward to something that is more certain.
  • A firm awareness that reconciling the marriage will not occur.
  • A strong interest in having some control over the outcome rather than awaiting a trial court’s decision, which may not be favorable or that does not best fit your family’s needs, culture, etc.
  • A sufficient measure of confidence in what the legal landscape of divorce entails for their particular case.
  • Strong preparation in budgeting, inventorying assets and debts, and making decisions about the children that are for the children (vs. the wants, needs, desires of the parent).
  • A willingness to accept change.

In the context of divorce, not every party in the marriage attains these qualities at the same time (or ever).  However, when both parties reach a critical point of acceptance, mediation indeed may be a process that serves them well.