Three Reasons Private Divorce Mediation Works

Private Divorce Mediation typically describes the instance where spouses agree to negotiate, before they file a petition for divorce or shortly after filing, the terms of their divorce using a mediator.  This process works for many couples and the reasons aren’t always the same. 

However, there are three common reasons that Private Divorce Mediation Works:

1.  The couple is prepared to talk turkey.  

    It is impossible to negotiate or agree to anything when you don’t know what you’re talking about.  Private Divorce Mediation works well for couples who have taken some time to take an inventory of assets and debts, what it will cost to live separately (if they’re not already living apart), and run multiple scenarios of what they believe would be a fair deal.  Divorcing parents also fare well when they’ve taken time to consider the costs of co-parenting, the logistics of visitation, what health insurance will cost for the kids, and have gotten information about the legal obligations and formulas related to child support.  When couples have no idea what an apartment or child care costs, the mediation can spend time obtaining that information at the mediator’s hourly rate and decisions can still be made, but the exercise can trigger emotional responses that set the discussions back.  

2.  The couple has used attorneys wisely.

    Divorce attorneys are most frequently used in three ways:  projects (like reviewing an agreement, drafting a will, settlement negotiations/mediation, etc.), consultation (providing information about your situation in the legal context), and retained for litigation (usually meaning paying a retainer and paying the attorney an hourly fee to handle all aspects of the litigation).  

Spouses who have “purchased” a few hours of consultation with an attorney before getting too deep into the divorce process are likely to have a much better experience because they are informed and aren’t going to make rookie mistakes (e.g., believing that they are entitled to an inheritance from their rich mother-in-law who is still living, sole custody of their child is a trophy that makes them a “better parent than the other,” etc.).  In some cases, couples can get the best bang for their buck by consulting an attorney, then mediating a tentative settlement agreement, and then go back to the attorney to review the tentative agreement for “approval” and filing with a court.  

Getting good legal information is critical to avoiding costly missteps and to negotiating from a position of confidence in Private Divorce Mediation.  And, certainly, the attorney is always invited to be at mediation!     

3.  The couple is more interested in moving forward than in fighting.

Private Divorce Mediation is a process where the mediator will facilitate discussions being focused on attacking the issues of divorce rather than on attacking each other.  However, the emotional progression of divorce (denial, bargaining, anger and acceptance) plays a prominent role in whether emotions will prevent productive discussions to occur.  In short, there typically needs to be a healthy portion of “acceptance”  or enough acceptance on both sides of the table for Private Divorce Mediation to work.

Couples who are no longer living together often are living the reality of a future apart.  They have already faced and addressed changes associated with divorce and have them behind them (e.g., they know what it will cost to live alone, etc.).  As such, many of the fears sparked by change are no longer flashing and those emotions are less likely to derail discussions about the terms of the divorce.

One Mediation offers Private Divorce Mediation services in Atlanta, Georgia through a panel of experienced, professional divorce mediators.  Visit us online at http://www.onemediation.com for more information about divorce mediation, seminars, and appointments. 

Tips on How to Successfully Mediate Temporary Orders in a Divorce Case

Today’s guest blogger is Scott Morgan. Scott is a Texas board certified family law attorney who has practiced divorce and family law since 1994. Today he shares with us his perspective on how to successfully mediate temporary orders issues in a divorce case.

As a practicing divorce attorney I believe that one of the most important phases of a divorce case is the temporary orders stage. In some jurisdictions the parties agree to and attend mediation to attempt to reach an agreement on the temporary orders. In other jurisdictions (such as many of the courts in which I practice) attending mediation is mandatory prior to a temporary orders hearing. Below are what I believe are the keys to successfully mediating temporary orders.

Prepare for Mediation as Extensively as You Would for a Hearing

Lawyers will often under-prepare for mediation, especially one solely for temporary orders. I’m not sure why this is, possibliy because the environment is a relatively relaxed one as compared to a courtroom. Nonetheless, the temporary orders set the tone for the litigation going forward. Whatever is agreed to will likely be very difficult to undo later.

For example, if the husband ultimately wishes to obtain primary custody of the children in the final order, it is probably a significant mistake for him to agree that wife get primary custody on a temporary basis. Doing so allows the other side the later argument that since he agreed for wife to have primary custody on a temporary basis he must have felt that this was in the children’s best interest. Absent some dramatic change of circumstance husband will be hard-pressed at trial to explain why this was in the children’s best interest then but not now. All of these kinds of significant issues and positions should be discussed in detail with the client prior to attending mediation.

Prep the Client for Mediation

At times experienced lawyers will be fairly certain what the temporary orders ought to be based on past experience with similar cases and knowledge of the judge’s tendencies on these issues. That is all very helpful. What is not helpful is when the lawyer begins to negotiate these terms without involving the client and getting his or her buy-in. The worst thing you can do is negotiate excellent settlement terms only to then have the client upset because the terms don’t seem so excellent to them. Make sure the client is involved with and approving of any terms that are proposed.

Don’t Be Scared of the Courthouse

I am always of the belief that a reasonable settlement is in the client’s best interest. The key word here is “reasonable.” Battling it out at the courthouse should be reserved for those issues where it is simply not possible to reach a reasonable resolution. With the growing trend towards mediation over my career I have noticed that some lawyers become so committed to the process that they cease to view court as an available option. While I like settling cases just as much as anyone else, it is a mistake to limit yourself in this way. The opposing attorney needs to know that you’re willing to go to the courthouse to protect your client’s rights if necessary in order to get a fair result.

Conclusion

As important as temporary orders are in divorce litigation they are frequently not given as much attention by attorneys as they deserve, especially at mediation. Proper preparation and a willingness to do whatever it takes to obtain a fair and reasonable result will dramatically improve your chances of a successful outcome.

About the Author

Scott Morgan is the founder of the Morgan Law Firm, a Texas firm with offices in Houston, Austin, and Sugar Land.

What The Cold War Teaches Us About Entrapment (& Sex Tapes)

Logically, entrapment could make sense.  

However, a person who tries to entrap another through obtaining audio or video recordings of the deed or admissions has to consider just how they plan to use it and how it might be used against them.  Remember the Cold War?  The phrase “assured mutual destruction” often was heard as a logical reason for not launching a nuke.

Assured mutual destruction also can be the outcome with covert recordings.  In this day and age, audio and video recording devices come in every size and form.  Most cell phones can serve as a discreet audio recorder – yes, there is an app for that.  So the evidence that comes into a court room these days often involves audio and/or video recordings. 

A case in point is yet another highly publicized affair between a corporate executive and a subordinate. Last week, the case of sexual harassment (among other issues) involved an open hearing into whether certain “sex tapes” had in fact been produced during the litigation, as required.  The local news, of course, picked up the story.  

It has all the makings for a movie.  The video is loosely described as showing the subordinate performing a sex act, and the CEO is naked. The now-retired DA was called to testify at the hearing on the tape(s).  Accusations of “invasion of privacy” are tossed about.  Attorneys are accused of misconduct.  Popcorn, anyone?

But, back to The Cold War.  I don’t know this, but I highly suspect that these tapes played a prominent role in pre-litigation settlement discussions.  I don’t know this, but I highly suspect that neither the CEO or the subordinate ever wanted these video(s) becoming part of the public record, broadcast in a court-room, or otherwise able to be picked up by TMZ.  I don’t know this, but I highly suspect that neither person is going to be able to recover from this escapade in the same manner that Paris Hilton managed.  

That the case has now advanced to public broadcasts of the “sex tape” means that mutual assured destruction has occurred.  The card has been played.  The other shoe has fallen.  The negotiation value of keeping the sex tape under wraps is gone.  Long gone. 

So, the lesson here from The Cold War is that covert recordings can be a double edged sword.  Covert recordings may show what the recorder wanted – in the context of entrapment – but to use it may result in the recorder also being in a compromising situation.

We Aren’t Talking, So Can We Mediate Our Divorce?

This may come as a shock, but Divorce rarely involves two people who are communicating well, share the same motivations, or are not experiencing some degree of denial/hurt/anger.  As such, many times divorcing spouses at one point or another end up in a stalemate of not talking to one another for a variety of reasons:  conflict avoidance, the rut is better than another heated discussion, the status quo might be better than moving forward, etc.   It is common.

Divorce Mediation can be a “way out” of these kinds of ruts.  How does it work?

First, a mediator is trained to help parties who are in conflict work together towards a solution, even if they never speak directly to one another.

Second, a mediator can extend an invitation to mediate from one spouse to the other.  This “invitation” is particularly helpful in situations where parties may not (yet) have legal counsel, but the practical realities of the children, paying bills, etc. are “up in the air.”   These logistics can be pinned down, even if the ultimate issues of the divorce may be left for another day.

Third, divorce mediators are trained in conflict communication and, because they’ve dealt with these issues 100+ times more than you have, they have lots of ideas and options to help couples solve the real-world problems of separation and divorce.  Most spouses arrive at separation and divorce with no prior experience.  Mediators can help you avoid reinventing the wheel, help you formulate your questions for legal counsel if you are unrepresented, and more!

In a rut?  Contact a divorce mediator for an assessment of whether mediation is a viable option for your situation and, as is done at mediation firms like One Mediation in Atlanta, to extend an invitation to your spouse to mediate. 

What Duck Dynasty Can Teach You About HR Training

ImageI admit it.  I watch (and love) the television show “Duck Dynasty.”  The show chronicles the Robertson Family of Louisiana and their family business of making and selling duck calls for hunters, among other things.  And, to those who poo-poo reality television, I don’t care if the whole thing is contrived, reduces my IQ, or otherwise are above it – the show is terrific.

But back to my point, a recent episode involved bringing in an HR consultant to conduct training for the “duck call room gang” (two brothers, an uncle, and two ever-tolerant employees) and the CEO (the third brother).  Upon the announcement of HR training on a Saturday, the uncle demands “double pay” and Godfrey (tolerant employee) demands biscuits.  In light of what actually transpired, contrived or not you-reality-TV-haters, it was better than double pay with biscuits.

Anyway, below are just three tips for HR trainers and professionals that immediately came to mind in light of this episode of Duck Dynasty:

  • HR Training on employees’ “off days” is a horrible idea.   If you want a hostile audience and an employer who ends up with increased overtime compensation expenses, hold your HR training on employees’ off-days.  Other unfortunate consequences may also involve the CEO and his uncle ending up handcuffed…together.
  • When the employees volunteer hemorrhoidal conditions and discuss related treatment, it may be a great time to talk about the ADA and FMLA.   The best HR trainers can take the craziest things a crowd offers them and turn it into a teachable moment.  However, I think this particular HR consultant chose wisely not to encourage “The Beards” by doing anything other than trying to get back to the video…
  • Bullying is context-specific; Professionalism is not.   Top notch HR professionals and workplace investigators understand that professionalism is a standard, but that bullying and harassment require a greater assessment of the context to determine whether “unprofessional conduct” also constitutes bullying or harassment.  When the HR consultant tells a brother that he’s bullying his uncle, his face says it all:  “I’m a bully? But, we’ve engaged in decades of this kind of verbal sparring?”  In short, banter vs. bullying is a fine line and calling someone out “in class” could result in the class ending with a flame thrower and a hack-saw.    

 

Oh, this list is truly just a sip from the uncle’s ever-present tea-cup on tips for HR training.  Please add in your training tips from this Duck Dynasty episode in the comments below, “Jack!”  

Jennifer Keaton, Esq. is a mediator and a workplace investigator with Workplace Investigations Group, a national panel of attorney-investigators.  When she is not watching “Duck Dynasty” or Miss Kay’s cooking videos, she serves as a hearing officer in employee grievance proceedings, offers HR training on various topics including harassment, and conducts third-party investigations of internal complaints of employee misconduct.  Contact Jennifer at jkeaton@onemediation.com.   

CBS – Divorce Rates Rise Among Baby Boomers (2013)

What about retirement assets, longer life expectancy and Social Security Benefits in the so-called “Gray Divorce”? And, why do people settle the divorce case?

The divorce rate among baby boomers has risen over the past 20 years. Ending a marriage could mean serious changes to retirement plans. CBS News legal analyst Jack Ford and Money magazine senior writer Donna Rosato share advice on how to rebuild your nest egg after a split.

“Corporate Counsel — Labor Law and Dispute Resolution”

Well, well, well….It’s about time, Corporate America.

Apparently after all the cuts that have been made over the past five years, the finance department started looking at the amount of dollars flying out the door for litigated employment disputes and started to wonder if all the “whining” from the Human Resources department had merit after all.  

ImageRecently, a larger company decided to add a “designated lawyer” to its legal department who would be tasked with addressing personnel matters with an eye towards “dispute resolution.”  Part of the job entails negotiating, investigating, and participating in mediation of personnel disputes.  While these tasks sound like the things HR was previously tasked with performing (arguably with less authority than what this attorney will be empowered with), the reality is that corporations largely have missed opportunities to address workplace frictions, issues, and legal matters for decades.  Perhaps now the conclusion is unavoidable that addressing issues as early as possible is also good for the bottom line?

Many labor and employment attorneys are now focusing a significant portion of their time towards ADR and other conflict resolution services.  At One Mediation and at the Workplace Investigations Group, for example, experienced L&E attorneys have formed panels to handle workplace mediations, arbitrations and workplace investigations.  The bottom line is that the time has come to embrace the resolution, not the fight.

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.