Divorce Process and Options in Geogia

Want it in plain English? This short video highlights the fundamentals of the divorce process and options within it in an engaging and animated way. Settlement, litigation, mediation and arbitration are highlighted.

Two Negotiation Steps People Forget (at the Drive-Thru)!

Image There is a problem.  A lack of  aligned interests.  A need for a solution.  

Whether figuring out which drive-thru everyone in the car will accept or settling the terms of a divorce, there are two steps most people forget when attempting to get to a resolution.

“Everyone” remembers to figure out what they want, right?  But, too often, the self-interests trump all other considerations in trying to reach a compromise.  (Rookies.)

The two other steps – critical, strategic steps! – that are too often overlooked in getting to an acceptable middle ground are all about the other person/side’s perspective:

1.  What offer CAN the other person accept?

and

2.  What reason should they say “yes” to your offer?

When these two additional steps are taken, a party is far more prepared to get a deal that they want than attempting simply to get everything (wishful thinking) that they want.

So, how does this work in the real world?  On your road trip with the kids, you anticipate the “fast food stop.”  The next Interstate Exit has a Wendy’s, a Subway, and a Burger King.  You, the adult driver, want to run through the Wendy’s Drive-Thru…but know that the kids are Whopper Junkies.  

So, how are you going to phrase this to get them to see things your way?  Give your “phrase” to win the kids over in the comments section below.

When Does Mediation Occur in the Litigation Context?

Image  A recent article from Nevada Business addresses the nuts and bolts of a typical mediation when litigation or a law suit is involved with hard facts and some well played levity.  

In the article, the author suggests that: “Mediation occurs after negotiation has reached an impasse.”   In other words, the author is suggesting that the parties’ efforts to work out the issues on their own has ground to a halt.  This chronology is often true, but not always with respect to when mediation might occur during a litigated dispute.

Attorneys often continue negotiations on a settlement or resolution right up to the minute that the mediation appointment starts and may continue to negotiation through and after the mediation concludes.  Simply put, mediation is a flexible process that can help do many things, such as:

  • Close a deal,
  • Accelerate the negotiations,
  • Identify pitfalls or information gaps that need to be addressed before more productive negotiations can occur (e.g., obtain the video, the valuation, the statement, the record, etc.),
  • Create a temporary agreement or a partial agreement, and more.

In all, parties simply do not have to wait for negotiations to end in a stalemate before participating in mediation when litigation is involved (and courts often order mediation irrespective of where negotiations or settlement discussions are).  

Contact One Mediation’s offices in Atlanta, Georgia for more information about mediation, mediation coaching, and local mediators at contact@onemediation.com or call 404-720-0599.

Men’s Divorce Recovery and Suicide

Divorce impacts nearly every aspect of individuals lives.  Given a choice between an IRS Audit and a Divorce – logic dictates the Audit every time!  Why?  The Audit only goes into the finances, not also monthly budgets, past-current-future purchases, parenting skills, the children’s futures and more.

The Huffington Post frequently includes articles about marital separation and divorce (kudos to them for mainstreaming it).  A recent article by a divorced father discusses the realities of divorce for a majority of men.  Noted in the article are great strategies for men to tackle divorce’s impacts, but also provides several compelling reasons for taking care.  One such reason is the statistically significant rate of suicide amongst male divorcees.

The bottom line is that this article is for everyone.  Those folks who are facing or recovering from divorce can easily isolate themselves – overwhelmed by the tasks at hand.  A caring friend or family member can pick up great tips in articles like these – it can make a major difference, potentially life altering.

Learn more about One Mediation and what it can do for families in transition at http://www.OneMediation.com.  One Mediation is a Georgia mediation firm that specialized in family law services, headquartered in Atlanta. 

Should You Defer to the Other Side’s Proposed Selection of a Mediator?

A quick “Google” on the topic of “how to select a mediator” will provide a bajillion articles…a good sample article here

Academics in the study of conflict communications and management might argue that the mediator need not understand the subject matter of the dispute (e.g., divorce, intellectual property, etc.), but can resolve any dispute by helping the parties focus on what the problem is and potential solutions.  There is truth in this stance.

Poll attorneys and many (if not most) will say that they want the mediator to know “the law” of the particular dispute.  If it is a divorce, the attorneys do not want a criminal defense attorney to serve as the mediator.  If it is a securities fraud matter, the attorneys do not want a family therapist to mediate the matter.  There is truth in this stance.

Once parties decide that they will mediate their dispute, too often they get bogged down in selecting who will mediate.  In getting knee deep in this “new dispute” of who will be the mediator, the battle of wills often is not about whether the mediator knows the subject matter or has the ability to manage conflict communications.  So, what is the right answer in this I want Mediator X; you want Mediator Y?

A heavily seasoned attorney for a global corporation spoke to the Dispute Resolution Section of the Atlanta Bar and said, off-handedly, that he didn’t really care (beyond the basics) who the mediator was and usually deferred to the other side’s desired mediator.  Why?  Two of the reasons he gave showed that he was a confident negotiator who really understood how mediation worked.

The first reason for deferring to the other side’s choice of mediators was that he could use any (any) mediator to do what needed to be done.  As a mediator, I think this statement is brilliant.  If a mediator is truly a neutral party and you are truly prepared to negotiate, you can and will use the mediator to help work with your client, to share messages with the other side, and to retrieve information from the other side, as needed.  Simply put, effectively using a mediator meant that he understood just how flexible the mediation process is and how creatively he could use the mediator (when you plan ahead or have significant experience negotiating) to get the settlement done.  Deal closed!

The second reason for deferring to the other side’s choice of mediators was that, since he knew how to use any mediator, he gained (or, perhaps, didn’t lose) a psychological advantage, if you will.  He noted that if the other side “didn’t get their way” on who the mediator was, the other party may arrive at mediation more emotionally charged than they otherwise would have been because they suffered a “loss,” even before the mediation session started.  The other party may also believe that the mediator is or will be more biased towards the other side, an opinion that may provoke the other side to be more aggressive, emotionally reactive, and ready to give up on negotiations more quickly because the odds were stacked against them from the outset.  

The bottom line is that in selecting a mediator, a factor that is often not discussed is the value of “giving in” to the other side on who the mediator will be.  So long as the mediator is worth his or her salt, deferring to the selection of the other side may be a strategic move towards setting the mediation up for success rather than failure.

 

 

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. 

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.

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.

File for Divorce or Mediate Before You Separate?

No one teaches you how to break up.  In love and war, emotions play high.  Often, a race to the courthouse to file for divorce can occur.  But, there is another way to break up that may not only be in the best interests of “the wallet,” but also in the best interests of any minor children involved.

Parties can file divorce on their own (or pro se), but more often than not, at least one spouse will retain an attorney.  The attorney’s retainer is rarely less than $5,000.00.  Not every couple has a spare $10,000.00 to spend on two attorneys – and the retainer is likely just the beginning. 

Sure, you’ve seen billboards that announce that attorneys will represent you for a few hundred dollars if the divorce is “uncontested.”  The second there is any dispute – holidays with the kids, the amount of child support, who gets the debt – it’s a contested divorce.  Simply put, it is the rarest of occasions that a couple’s divorce is uncontested, at least for the billboard attorney.

But, one way to set up an uncontested divorce is to mediate before (or during) separation – or at least before a petition for divorce is filed.  For about $1,000.00, a mediator can assist the couple with working out the details of their split – the debt, the assets, the children, the retirement, the house and furnishings, etc.  When couples have already gotten most, if not all, of these issues worked out on their own, they are well positioned to avoid a big legal battle that simply drains the pot of money that they are fighting over (okay, or usually are fighting over). 

Check out www.mediateB4Useparate.com for more information on mediation in the context of separation.  There is at least one other way to break-up, other than making a mad dash for the courthouse to file for divorce:  it’s Mediation.

New Panelist Barbara Ellenberg joins One Mediation

Barbara EllenbergMs. Ellenberg has practiced law in the State of Georgia since 1989 and also serves as a mediator and arbitrator of disputes. She graduated from Emory University and earned her law degree from Georgia State University. Ms. Ellenberg personal background has served her well in providing legal counsel to
business clients and for mediating business disputes as she, in addition to practicing law, owns a successful wholesale business which was co-owned for a long period with her ex-husband. This experience with a family business resonates in her corporate and domestic/divorce mediations.

In conjunction with Ms. Ellenberg’s corporate law experience, she has a specialization with intellectual property and trademarking issues. Her understanding of this special legal field has served business disputants well in an age where technological advances create new and unique business disputes that are time sensitive and cannot wait for trial. As such, she has been an effective deal-maker in these kinds of business disputes.

Ms. Ellenberg is available to mediate on weekdays and weekends. Click on the Schedule button above to review her availability for mediation services.