xxxxxxxxA few years ago, the California Supreme Court wrote a scathing analysis of the state of the family court system.  It noted that the large majority of litigants were self-represented and the result was a system in crisis.  Courts, then and now, are unable to provide support services to the wave after wave of California’s self-represented litigants, which leaves judges and clerks at a loss about how to administer the divorce process fairly while ensuring quality outcomes.

xxxxxxxxAfter the California Supreme Court’s report, the Elkins Task Force was created and their administrative recommendations have been slowly implemented over the years, culminating in a set of drastic changes and requirements instituted as of January 1, 2013......

xxxxxxIn the interest-based model of mediation the concepts of who is right and what is “fair” are explicitly rejected in favor of a non-confrontational exchange of information to craft win/win solutions.

xxxxxxThe first rule of interest-based bargaining is: Speak Respectfully.  That means no tirades, no sarcasm, no labeling.  No behavior that could be interpreted as demeaning to the other, or blaming.  This rule leaves space for people to speak candidly, directly, and even with emotion.......

xxxxxxxxWe often think of mediation as an environment in which the mediator is a preternaturally peaceful person and the clients are kind to each other and bring excellent communication skills to the process.  And, admittedly, there are occasional moments in mediation that fit that description.

xxxxxxxxBut mediation is a human situation, and therefore the reality is generally more complicated.  Since the first step of mediation is to assess whether mediation is a good choice for you and the other person in a family dispute—such as divorce or probate—it’s important to reflect on your needs, the larger situation, and the nature of mediation services. And as part of that assessment I encourage you to remember that mediation, being a human system, does not require the clients to be already getting along......

xxxxxxxxIt’s commonplace for one of my clients to say to another, “You should be sorry, you should tell me you’re sorry for what’s happening.” And most of the time, the listener tries to ignore or reject the notion of apologizing—saying “this is not my fault.”  But when that rare client responds with, “I am sorry,” I’ve seen the mood of an entire negotiation transform rapidly, in both people’s favor—making that moment a golden opportunity to build trust and empathy in negotiations.

xxxxxxxxAnd in this litigious age, where we consider our actions and statements in the terms of potential liability, it’s understandable that someone balks at the idea of saying ‘I’m sorry.’ To apologize is defined by Google as, “[to] express regret for something that one has done wrong” (emphasis mine). But I wonder if this view of apologizing is something that needs to change—that it may be too narrow a description......

xxxxxxxxIt’s not uncommon at the beginning of a mediation process for people to choose as one of their process rules, “No substantive emails.”  When I ask clients how email communication has gone between them in the past, some people look at each other and shrug, saying no problem there, but it’s not uncommon for clients to look down at their notes or around the room with a rueful chuckle saying that they might have exchanged a poison pen email or two; and recalling those hurt feelings or misunderstandings, they always agree to not use email to “talk” over the elements of their mediation.

xxxxxxxxIn the world of conflict resolution, email communication is often ranked the worst medium to express ideas, feelings, or anything beyond basic factual information......

 

xxxxxxxxMediation is a transparent process, which means clients are required to share information relevant to the matter at hand—simply, informally, and relatively quickly.   In contrast, when people hire traditional attorneys, the first step of a legal process is “discovery,” in which traditional attorneys must only divulge information they have to divulge, and work hard to find out what the other side might be hiding, all within a strict set of rules and requirements.  The discovery phase of a traditional legal process can take a long time, and cost a lot in professional fees.

xxxxxxxxThe transparent approach to information gathering is one of the many reasons why facilitative mediation is efficient, client-centered and less expensive......

xxxxxxxxxxBack in the 90s, there was a movement in the dispute resolution community to merge legal and mental health services into one mediation process.  I’ve been told by colleagues that this model of co-mediation was taught for many years and got a lot of attention at the time as the “new best thing.” This model involved both professionals co-mediating every mediation session, and was not embraced by clients as expected due to the cost of having two hourly professionals simultaneously billing.  But the movement did signal the start of a slow integration of legal and mental health services in dispute resolution overall. For instance, all family courts in California have added a Family Court Services department, or mental health mediators that work with parties with minor children; and mental health professionals are more and more team members in mediations and Collaborative Practice processes.  These professionals are often called family relations specialists, coaches, or child specialists.

xxxxxxxxWhen people call my office for a free 15-minute phone consultation, they commonly ask, “Are we good candidates for mediation?”  And often my response is: mediation tends to be successful—if we define success as ending in agreement—when the participants have the capacity to focus on the big picture.  Whether people are addressing a probate dispute in the wake of the death of a loved one, or restructuring their lives due to divorce, mediation and Collaborative Practice processes encourage participants to stay oriented to their values, to transparently state their goals and reasoning, and to focus on the big picture as defined by the participants.

xxxxxxxxOther times my response is to ask a further question: Do you value your relationship after the situation is resolved? Are people you love, like children, family, or friends invested in your resolution bringing a measure of peace? Can you dig deep to find value in compromise, in developing a resolution that honors both your and the other participants’ views?

xxxxxxxxxThere are many elements we can focus on in analyzing the cost of divorce, but I’m writing to offer some thoughts on the billable hour. The billable hour is how most professionals approach the transaction of working with you during your divorce—you pay them for the time it takes to complete the process.  A few renegades deviate from this model, like the husband and wife therapist/attorney duo who charge a flat fee of $10,000.  Or in the other direction, the bare-bones services of a document preparer who charges a flat fee with the training and skill set that reflects the amount of that flat fee. But the vast majority of divorce professionals—legal, financial, mental health—break their time down into smallish increments, like six or fifteen minutes, and bill for the time spent working with and for clients to get their tasks completed and their divorces finalized.

When people need to divide retirement funds after their divorce, if those funds are in a 401(k) or a pension, usually people have to go through a process mandated by federal law—filing a Qualified Domestic Relations Order (QDRO) with the court and then serving the order on the account’s plan administrator. If the employee spouse goes into their HR department with that news, they are often given a sheaf of information including a template QDRO with instructions for filing it with the plan administrator.  It seems a simple process to just follow that advice, but to do so can be a trap for the unwary, as there are many nuances to the QDRO process.

Since my last post, dated April 23^rd,  I’ve had some time to ponder the feedback I’ve gotten about my “happiest” clients who didn’t engage my legal services until the very end of their interdisciplinary divorce mediation process.  The majority of the feedback was from fellow professionals expressing some form of unease at the thought of bringing in a legal professional at the very last minute of a mediation process, an unease that I share in most cases.  In my last post, I thought I’d share the story of some folks who had an extreme aversion to legal professionals, and how well their client-centered mediation process fared for them.  But I do not believe that their response is the best response in most cases.

I would like to be able to write that my most satisfied clients, the ones who expressed the highest level of happiness with their process and its outcome, were ones that I’d dealt with deeply, going every step of the way with them.  But I can’t write that and be telling the truth.  The happiest clients I’ve seen in my practice, who were able to laugh and hug at their last mediation session, after starting the mediation process polarized and being very angry with each other—well, they didn’t start in my office.  They started with a family relations specialist—sometimes referred to as a divorce coach—who is a mental health professional trained in family dynamics and the underlying effects they have on family disputes like divorce and probate.....

In the past couple of years, the term Consensual Dispute Resolution has developed in the legal community as a way of differentiating certain legal services from Alternative Dispute Resolution legal services. That is, CDR designates non-adversarial processes like facilitative mediation and Collaborative Practice, and ADR designates all other legal services that are outside of the public court system, like private judging, evaluative mediation, and arbitration (adversarial processes).....

One of the benefits of working out your divorce or probate matter in a non-adversarial process like mediation or Collaborative Practice is that the people involved, not the professionals or the courts, decide how fast or slow the process will go.  How much this is experienced as a benefit has to do with how close everyone’s ideas are about pacing. In general, people agree on pacing, like a Wife and Husband working out their divorce will often decide to meet at regular intervals that they can both manage, or a set of siblings resolving their parent’s estate will decide to have conference calls at certain procedural junctures.

When we find ourselves in a dispute with our spouse, or sibling, or anyone else, we often want to talk to a lawyer to find out our legal rights.  But before you take the step to see a lawyer consider a question Chip Rose—mediation and Collaborative trainer—asks his clients when they ask him what their legal rights are: “Why are you aiming so low?  Your legal rights may or may not be a good outcome for you.”

It's winter and our thoughts turn to the various holidays and the turn of the year.  Almost everyone enjoys some ritual celebrating the mood of the season, whether it’s picking out a tree, lighting candles, or watching a ball drop.  We treasure these rituals and family times; during the holiday season we often soften and get a bit nicer by being reminded of what we hold dear.

Some people think that mediators, as fonts of sage notions of compromise, virtue, and peace, walk around following their own advice all the time.  My response when people say something like that to me is, “Ah, no, we’re as human as the next person.”

In our own personal conflicts, we mediators may snap at our spouses, momentarily forget the value of listening, or fall into trying to convince someone to see things our way, rather than looking for how to bridge the gap between our view and theirs.

An old client recently pointed out to me that I write about my clients in my blog.  Now that may not sound like a thought I should need brought to my attention—but the impact she experienced thinking I had written about her, triggered a realization for me that it’s true: I write about other people, my clients, in my blog.

So with this post I offer a bit of payback to all the past and future clients who I will write about over my career. I offer a few moments from my own divorce, which occurred about eight years ago.....

People in conflict have three options open to them:

• stay in conflict (e.g., I'm right / you're an idiot)
• surrender the conflict to another  (e.g.. I'm right / I can prove you're an idiot)
• transcend the conflict (e.g., there's some way in which we're both right)

carl Micheal rossi- Collaborative Coach

I sometimes ask potential clients: are you ready let go of being in conflict with the other person?  I invite you to consider this question if you think that mediation might be the right resolution process for you and your spouse.

Working together to craft a divorce agreement asks a lot of clients. It asks them to be invested in how the potential outcome affects their spouse, in addition to how it affects them.  This can be a hard reality of the mediation process for clients to bear through the months of information gathering, option development, and negotiation.....

Recently I had two sessions in a matter of days where one person during each session said basically the same thing to me, “We’re not getting anything done!  We’ve been at this for months, and we have nothing to show for it! Are we dragging this out? This constant talking is not producing results!”

I knew that both sets of clients were close to finishing the mediation process, despite the feeling that they weren’t getting anywhere. And those two sets of clients ended up in two very different places soon thereafter.

At one set of clients’ next session, they came to resolution on all their outstanding issues, and when I said to both of them, “The hard part is over, you’re basically done,” they both exclaimed what a surprise that was, they were pleased, and in hindsight it really hadn’t been so bad.  (Yes, that’s a very common response to coming to agreement, and it makes me smile.)

The role of the law in mediation and Collaborative Practice is a frequent discussion among divorce professionals, and I had the pleasure of addressing this topic, with three colleague friends of mine, at the recent Collaborative Practice California Celebration V conference. For our presentation we came up with a few main points:

When my father died unexpectedly this past Christmas, I looked at his life from that wide perspective that death often gives us. My dad was not what you’d easily describe as a good man—he went out into the world too young and under-parented, went to war and killed heroically and killed tragically, and fell into cruelty and unsociable tendencies over his marriage and parenting years. And he died unattended, much too young to be so frail and addled. I could be angry at him if I stitched together a certain story of our relationship. But when he died, it didn’t seem worth the energy to sit in judgment of him. Instead, I cried for the fact of his life, and my life, and everyone’s life—that precious thing we all bear differently.

Mediation is a term applied to a wide variety of dispute resolution forms.  Mediation can be a process with a sharky-style mediator going back and forth between two rooms full of attorneys with one thing on his or her mind: settlement at all costs; and the label mediation just as accurately applies to a process where an attorney sits in a living room-style setting and asks questions about the two clients’ values and how they both can heal through resolving their conflict.

Consulting attorneys can make the difference between a smooth mediation process and one fraught with conflict. It’s important to choose your consulting attorney wisely.  Most mediators will provide a list of consulting attorneys they recommend, and many clients just pick from their mediator’s list.  But other clients want to determine their own options.  If you want to find your own consulting attorney, it’s good to be prepared on how to talk to a litigator when you potentially want their help in a non-adversarial process.

It makes sense to start writing about love on a personal note.  About a year ago, I experienced love at first sight.  A gentleman about to teach a class to lawyers strode into a packed room in what looked like, frankly, a golden spotlight.  I almost gasped, and instinctively moved to hide. (Sunday-morning sweats and glasses were not meant for this type of moment.)  A week later, we discussed on the phone meeting for coffee, but since we were in a professional process together, we decided to be prudent and finish our business, and then meet– no matter how long it took–in months or even a year. So remember as you read further, when I write that true love can wait, this view comes from both my personal and professional experiences.

Building on my post dated June 14th, let me express gratitude for the highly skilled Collaborative attorneys and mediators who have taught me, and and continue to teach me, my professional skillset.  And yes, every single one of them used to litigate cases, and did so for years, before they developed their practices as Collaborative attorneys and mediators.

The dominant view in the legal community, currently, is that an attorney must practice litigation for years before they can become a qualified Collaborative attorney or mediator. Some attorneys say “a few years,” other attorneys say, “ten to twenty years,” to develop the necessary expertise in the law. Yet there are good reasons to reject this view.

My ninety-three year old maternal grandmother died recently , on the heels of the unexpected death of my beloved cat, Goober. So I’ve been spending a lot of time lately thinking about grief, and about how most of my clients are the stages of grief.

Conventional wisdom said, “Keep kids out of the divorce process.” We thought that it protected kids from the “fight” of the divorce to be told aspects of the process in pieces. We hoped they would go about their happy kid lives, insulated from the stress of their parents’ breakup.

Starting a marriage is relatively easy. Two people decide to join their lives together, and typically, they pick a venue, invite some loved ones, get a marriage license, and say “I do.” And for that typical legal marriage, a whole boat-load of rights and responsibilities get exchanged, often unexamined by the newlyweds.