Entries Tagged as ''

Divorce Mediation Webcasts

Philip Mulford, an experienced divorce mediator (and former divorce attorney) located in northern Virginia, has a “radio” show broadcast exclusively over the internet.  Mulford’s weekly show, “Divorce Mediation Myths and Facts” covers a number of topics and also takes calls from listeners.  Some recent myths covered on Mulford’s show include:

  • We can’t talk with each other, so we can’t mediate
  • I won’t compromise, so forget mediation
  • A court victory is guaranteed
  • All mediators are the same

His show is broadcast on www.voiceamerica.com live on Thursdays at 2:00 PM EST and repeated throughout the week.  The show is not aimed at mediators, but people who are considering divorce and using mediation.  An archive of recent shows can be found here.  Give a listen if you are considering it yourself.

Mediating Bad Smells, Part 2

Following on an earlier blog post about agricultural smell mediations, the Calaveras Enterprise writes about, er, more smelly mediations.  Calaveras County (CA) has decided to institute an Agricultural Dispute Resolution Committee.  It seems there are a growing amount of disputes from people buying new homes located near long existing farms.  County employees and committee members will be trained in mediation skills.  Since Calaveras County is in Sierra foothill wine country (my good friend, Andy Standeven has his Shaker Ridge Vineyard in nearby El Dorado County), I’ll drink a toast to some successful mediations!”

Crapshoot

In commercial mediations, I often discuss the risks of litigating a case with my clients.  Going before a judge or jury presents a lot of unknowns and risk.  This is not much different than taking a trip to a casino, where the outcomes are uncertain.

Following on the methods of a Florida judge, Senior Federal District Court Judge Marvin Schoob in Atlanta has ordered two attorneys arguing over the location of a desposition in a civil case to use “a new form of Alternative Dispute Resolution….counsel shall engage in one (1) game of  ‘Rock, Paper, Scissors.'”

Civil Unions and Irreconcilable Differences

There seems to be some confusion at this point whether the Irreconcilable Differences (“ID”) cause of action enacted for divorce in marriages would also apply to dissolution of Civil Unions.  The ID bill was introduced before the Lewis v. Harris decision came down and before the legislature considered the Civil Unions bill.  In essence, the two bills crossed during their passage.  Obviously, under Lewis the court directed the government to make same sex unions legally equal (at least under state law) to marriage.  The Governor in his statement accompany the signing of the ID bill said he was assured this would apply to civil unions.  It seems that the legislature will need to enact a techincal correction or the courts will have to enforce this for civil unions.  If it’s the former, they have a bit of time to enact it since civil unions will not come into effect until mid February and the ID has a six month tail.

Governor Corzine signs NJ Irreconcilable Differences Bill into Law

It was announced on Monday that New Jersey Governor Jon Corzine has signed the Irreconcilable Difference bill into law over the weekend.  It takes effect immediately and will also apply to civil unions.  This bill creates a new cause of action for divorcing couples.  The exact wording is as follows:

“Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.”

If a couple is going through a contentious, litigated divorce, this new cause of action may not translate into a quicker divorce; the court still needs to go through its processes.  Where this becomes beneficial is by allowing a divorcing couple to not have to claim “extreme cruelty” as the cause of action, or wait for an 18 month separation as the current no-fault.

If a couple is mediating their divorce, it should allow for a more speedy and dignified resolution.  It should allow for a smoother divorce since couples wouldn’t have to air their dirty laundry and issue hurtful attacks to get divorced.  This is especially true if there are children involved.  See the very public Michael Strahan or Jason Kidd divorces for examples of ones who are not so smooth and are ultimately harmful to the children.

If you should have any questions about mediation in light of the new law, please let me know.

Ooooh Oooooh that Smell

I don’t think I can sum this one up any better than the original article….

Mediation is first step in hog disputes
By JAN HORGEN, Of The Globe Gazette

MASON CITY — Hogs, to a producer, smell of money.

But as the number of confinements increases, the smell of manure has created conflict.

Settling these neighborhood disputes falls first to the Iowa Mediation Service.

Iowa law, since 1990, has required mandatory mediation before a nuisance lawsuit can be filed regarding any animal confinement.

Since the expansion of corporate pork ownership, beginning in the early 1990s, the industry has come under fire.

“Before that time, pork production was on a smaller scale, most of it family owned,” said Stan Deardeuff, a regional coordinator for the Iowa Mediation Service.

With the rapid increase of new confinement buildings built in Iowa in the past 18 months, Deardeuff expected to be called in for more mediations.

That has not been the case.

“I believe it’s because of better siting by the pork producers and better understanding of what past problems have been,” he said.

A major problem more than 10 years ago was a lack of communication, he said. “Often, the first indication neighbors had that a hog confinement was being built was seeing a bulldozer sitting in a field.”

When heavy equipment arrives, questions arise and emotions can run high.

If a hog producer considering a new confinement does a little legwork ahead of construction, it often goes a long way toward keeping peace in the neighborhood, say Deardeuff and Eldon McAfee, a Des Moines attorney who represents pork producers in mediation cases.

Mediation law is written so the two disputing parties rather than the mediator make decisions. That way, if an agreement is reached it is consensual.

Enforcement of the agreement falls to those involved in the mediation, not any legal agency, McAfee said.

How often does mediation change a planned confinement construction?

Not often.

“Early intervention is the best,” Deardeuff said. “Often by the time a situation gets to mediation, money has been spent and there are financial commitments, so the producer is not willing to lose money.”

McAfee agrees there have been few, if any, situations in his 15-year involvement in mediation that a proposed siting has changed or a written agreement has materialized.

“But although there may be no formal resolution, many times the neighbor and producer agree to keep talking,” McAfee said.

Mediation, both men say, has been key in reducing the number of nuisance lawsuits filed regarding confinements.

Disagreements start with an anticipatory nuisance, a case of people being concerned that there will be an odor or health problem, McAfee said.

“It’s really a value dispute — quality of life versus economic development,” Deardeuff said. “Whose rights should dominate, should carry more weight? I don’t know. That’s what makes this such a difficult situation. There are no clear-cut answers.”

More on Civil Unions

The Civil Unions law will become the effective in NJ in February 2007.  As I mentioned in an earlier post,  there are a number of differences that make civil unions not quite equal to marriage.

One was the differences in federal tax law.  The Defense of Marriage Act (1996) defines marriage as between a man and woman for purposes of all federal benefits, which includes the tax code.  This means that all transfers pursuant to a dissolution of a civil union would be treated as a gift and thus taxable to the recipient (and not deductible to the giver).  I had talked about the tax aspects of alimony, but there are two other areas that could be problematic.  One is equitable distribution.  Again, splitting up the common assets accrued during the civil union would be considered a gift to the recipient and thus taxable.  Another area is that splitting a retirement account earned during a civil union under a Qualified Domestic Relations Order (QDRO) may not be possible, since that is a federal program.  Again, many of these areas are developing areas of law.

Another area was would another state recognize the civil union or the dissolution?  In Rhode Island, a state that does not recognize same sex marriage or any type of same sex union/partnership, a same sex couple who were married in Massachussets has filed for divorce in RI.  The family court asked the state supreme court for an opinion on the case, to see if RI had jurisdiction to do this.  The supreme court asked the lower court for clarification on some issues.  This could be an interesting case.

Experts: Mediation Cuts Costs Of Divorce

Here’s another article that talks about the benefits of mediating a divorce.  This article is from NBC’s San Diego affiliate.

In this day and age, everyone from high-powered corporations to neighborhoods are turning to mediators to solve their differences, and now it’s even working for couples ending their marriage, Consumer Bob reported.

The cost of splitting up can be enormous. When most people think about divorce, they imagine two attorneys arguing and trying to win. The legal fight can easily run into thousands of dollars, and that is why more and more couples are skipping the judge and attorneys and turning to a trained mediator.

“We can do mediation for $4,000, (or) you can go to court and do it for $40,000,” mediator Bill Eddy said.

Eddy has held nearly 750 divorce mediations through the National Conflict Resolution Center. He said it is not just about the money.

“In court you’re focused on the negative, what he did wrong, what she did wrong, trying to see what advantage people can get that way,” Eddy said. “In mediation we’re really focused on the positive.

“Mediation is not just for people who get along well already, Eddy said.

“Many of our clients at National Conflict Resolution Center don’t get along so well,” Eddy said.Eddy said they are still able to work out their differences away from the courtroom. While the final mediation is eventually signed off in court, it is resolved directly by the divorcing couple with help from the mediator.

“In mediation the couple will work together to decide themselves how they want to divide their property, look at what the support options are, and make decisions on their own for how they’re going to divide time with the kids and co-parent,” Eddy said.

An Article About Divorce Mediation

Here’s a great article from the Post and Courier (Charleston, SC) about the benefits of divorce mediation.  I (and most divorce mediators) do not typically use the shuttle type of diplomacy described near the end of the article.  Most divorce mediations are done in joint session with both parties present.

Mediation can shorten long, drawn-out process
Saturday, January 06, 2007

BY RON MENCHACA

The divorce of prominent Charleston attorney Gedney M. Howe III and his wife, Celeste, places a spotlight on what some say is a valuable but underused legal process that can spare couples years of acrimonious and expensive legal proceedings and preserve any remaining civility.

The attorneys involved on opposite sides of the Howe case – J. Graham Sturgis Jr., and Larry Richter – declined to discuss the merits of their arguments, but both said that mediation can minimize the hard feelings involved in many divorce cases and they hope it will work in this one.

The goal of a mediator is to act as a neutral party and help both sides see the strengths and weaknesses of their situation more clearly and to strike a deal that then goes to a judge for approval. Many counties and judges mandate mediation, but in most cases the decision is up to the attorneys and clients involved. The discussions can’t be used in court and the mediator has no authority.

Richter said he presided over his fair share of bitter divorces as a family court judge. He said mediation
keeps lawyers focused on finding a resolution. “You don’t need a lawyer just because you’re angry and want to draw blood from your spouse.”

Sturgis said he has seen attorneys in divorce cases get caught up in a tit-for-tat of elevating allegations and lose sight of what’s important in an emotionally charged process. “The process of litigation in family court is very seductive. You have to say bad things about your spouse to get relief. That generally results in a response from the other side.”

Mount Pleasant attorney Mark Andrews spent years litigating divorce cases before shifting his focus to divorce mediation and arbitration. “I know the destruction of it,” he said. “Sometimes it takes on a life of its own.”

Andrews believes that all but the most complicated divorces can be settled in mediation, saving couple’s time, money and bitter feelings that can last a lifetime.

Andrews does what’s known as “shuttle mediation” in which he bounces back and forth between opposing parties in separate rooms as he searches for common ground. By moving the discussion away from anonymous legal filings and personalizing the process, he believes couple’s work more cooperatively toward a settlement rather than trying to one-up each other through their attorneys.

Most couples will spend far more money on attorneys’ fees during several months of legal wrangling than they will on a mediation process that often produces settlements in a single day. But more important, the shorter duration may save their sanity, he said.

Mandatory Mediation?

Mediation has always been billed as a voluntary process.  After all, no one (not even the court) can force a person or company to settle a matter.  The way courts in NJ get around forcing parties to mediate cases is by having an “out” before charges start.

A recent case in California upheld the principle of voluntary mediations.  In Jeld-Wen v. Marlborough Development Corp (06 S.O.S. 76), a Superior Court judge ordered the parties in this complex case back into mediation.  The appellant refused to attend, contending that you cannot force a party to mediate and that since they were a minor defendant in the case, their pro-rate share of the cost to mediate would exceed the total claim against them.  They decided not to show up at the mediation and the plaintiff filed a motion for sanctions, which was granted.

Jeld-Wen appealed and the appeals court ruled in their favor, stating that “While trial courts may try to cajole the parties in complex actions into stipulating to private medaition…they cannot be forced or coerced over the threat of sanctions into attending and paying for private mediation as this is antithetical to the entire concept of mediation. ”

Mediation, like any other tool, is only useful if it brings more value to the participants than it costs.