Usually, I only ask for retainers when there is a lot of work to do by phone. In situations where it is counter-productive for the husband and wife to be in the same room together, speaking to them separately by phone is a necessity, including calls to their attorneys, in order to move things along.
I once had a case where I told the client, “I don’t usually charge for emails and phone calls.” The client started emailing me regularly. By the end of the month, I had received 83 emails, and had a better understanding of why some mediators charge for emails and phone calls.
When I was first trained as a mediator through an internship at NYU, I was sent to a government agency to see how they resolve disputes. I worked with the head of the Alternative Dispute Resolution (ADR) Department. He was going to show me how he resolved disputes, using mediation. He planned to introduce me as his co-mediator, however, he also made it clear that he was pretty much going to be driving the bus. He said, “I’m going to show you how we do things around here.”
Two women came in the room. One woman was bringing charges of harassment against the other. She was really aggressive, loud and banging her fist on the table. She threatened to start a lawsuit and go after monetary damages. The other woman started yelling, too, and pretty soon we had pandemonium. It was hard to keep control and calm them down, so my trainer put them in separate rooms. Continue reading
When addressing basic child support (food, clothing and shelter), mandatory add-ons, and discretionary expenses in the Settlement Agreement, we say, “While there is no statute directing you to pay for your child’s college education, something like a SUNY clause, capping your contribution to education at a State University of New York tuition rate, is an obligation most parents and courts are comfortable with.”
“So if I’m paying for room and board at college, why should I pay for room and board at home? Isn’t that paying twice for the same thing?”
Generally, most attorneys will say, “Double shelter allowance. My client should get a reduction in child support for their share of room and board expense at college. Why should my client have to pay room and board at the home where the child is not living when they are living at college?”
As we approach the Chinese New Year, I thought it would be timely to share a bit of philosophy with you all. As someone who has been involved with studying martial arts, Buddhism, Tao Te Ching and Confucius philosophy, I have attended many lectures. One lecture I particularly remember was a teacher explaining a passage of the I Ching (inevitability of change, yin and yang, fortune telling). He said the following regarding the difference between pride and modesty:
The I Ching teaches that pride is like a mountain. It’s high, solid and imposing and doesn’t let anything in. It does not allow the acceptance of others and their points of view. It will not let all possibilities exist for it does not accept opposite points of view.
Do not rush to judgment. Do not be like the mountain.
After negotiating labor contracts, representing a trade union, and arbitration, I decided that maybe divorce mediation was the way for me to go. I was very excited about mediation. I took lots of training, but with no experience, I was looking for words of encouragement. New mediators get very excited about their new career and are looking for people in the business to inspire them, and to say, “Yes, we can!” Remember that?
I had taken a law training at NYU and called one of my law professors who was involved in dispute resolution. I said, “I just have to ask you something. I am very excited about being a new mediator and specializing in divorces. What can you tell me that will kind of put me on the right track?” Her response: “Keep your day job.” I was really taken aback by this. “What do you mean ‘Keep my day job’? I want to be a mediator, make a career of mediation.” She said, “There’s no money in mediation, forget about it. Go find something else to do.“
I understand it is very difficult for a couple to be in mediation and talk to one another instead of using lawyers to talk for them. They are involved in a process that’s very new to them and have to make very difficult and long-range decisions about their family, money and everything else. I get that. It’s also difficult for the mediator to not say anything that would unduly influence either side.
As a mediator, I am not an advocate for either party. I am a neutral. I am the guy in the middle. But what do you do after 20 plus years of mediating disputes, contracts and negotiating when you hear one side giving up what you think, is too much? You know that they have a long-term marriage, and are pretty much dividing things in half, but one person says, “I don’t want my share of my spouse’s pension. They worked for it and I don’t feel I am entitled to it.” Do they know the value of what they are giving up?
Finding a cure for the common cold or finding a mediator in the courtroom?
Answer: It’s a trick question. You are not going to find either.
Mediation has been around for thousands of years. If you go back in history to the Druids, they were the mediators for the warring Celtic tribes. They were brought in to settle disputes and try to prevent wars from happening. As mediators, we are trying to prevent sides from warring with each other, which decimates their property, incomes and family.
Sounds like divorce, doesn’t it?
And yet, mediators are still treated like the new kid on the block. When you go to a courtroom, it would make sense to find a mediator at the intake when the couple first comes in, to see if there is any possibility of settling certain discrete issues or even the whole case.
I recently got a response to one of my blog articles from a mediator who said, “Of course, I know all about this. I’m a mediator. I know about everything in divorce and everything related to people’s feelings. That’s who a mediator is.”
Early in my career, I co-mediated with an experienced attorney. We worked together for several years and thought we were doing a really good job. We had successfully mediated hundreds of divorces.
I still remember one couple that we worked with. The wife was absolutely beautiful; the husband was kind of an average-looking guy. We talked to them for a while and it was clear that they both wanted to get divorced. The wife started talking about how her life was all about the kids and how devoted she was to them. She also mentioned that the husband worked all the time and the reason the marriage was breaking up was all his fault. She was cleaning the house and being a good mom and trying to work with her business partner to build a business.