[Time to Read: 2 mins]
For years, I’ve heard that some non-attorney mediators write their own settlement agreements. When I first started a mediation practice, my partner was an attorney, and we’d mediate together. Although I would write certain parts of the settlement agreement, she often modified the language and always reviewed the agreement before it was sent to the clients.
As the years went on I became a sole practitioner, writing memorandums. My memorandums would then go to an attorney and the attorney would write the legal agreements.
Although I’ve participated in the writing of over 1,000 agreements, when I send out my memorandums to the attorneys, I sometimes have my language rewritten, because the settlement agreements really need to be written from a litigation perspective. If the agreement was brought before a judge, would the intent of the sections of the agreement be clearly understood?
The recent events regarding the Michael Brown shooting and protests in Missouri prompted me to think about how different cultural groups interact and the lack of ethnic diversity in the mediation profession. It also made me think about:
- What role does ethnic diversity play in my life?
- What have my experiences been?
At one point in my life, I was an employee of a large company, whose president was an African American. I saw first hand how non-African American employees were discriminated against and not promoted while less qualified African American employees, with little experience, were promoted.
In retrospect, I believe discrimination has little to do with being Caucasian or African American – or Asian or Muslim or Hispanic – and more to do with abuse of power. The group in charge supports and promotes their own.
As a mediator, I’m happy to say, that my clients are from all ethnic backgrounds. Just in the past few months, I had a couple originally from the Middle East, a couple from South America, another from Italy, and one from Germany. While their backgrounds were certainly very different, the issues were not. If I closed my eyes and disregarded the accents, they had the same problems and issues as any American couple.
Most of these cultures value mediation. They see mediation as a very important part of settling disputes. Continue reading
A couple came to my office. The wife is an executive for a Fortune 500 company. She makes a big 6 figure salary with tons of perks. She has the use of villas around the country, internationally; stock options; bonuses; all the goodies.
I said, “We’ll plan a mediation session to discuss your settlement.”
They say, “No, we’ve already worked this out.”
I said “Really?”
“Yes, absolutely. As a matter of fact, we don’t want you to change a single thing. We have a spreadsheet, and we have drafted a preliminary agreement. We want you to just write what we’ve decided.”
“But do you know what the marital interest is?
Do you know family law?
Do you know how you determine the marital interest in a pension?
Do you know any of that?”
“No but we don’t care.” Continue reading
I said, “Wow! It’s late. This must be really unusual for you.”
He said, “No, not at all. As a matter of fact, I work most nights until past 9:00 just to keep up with the work.”
I asked, “Does it ever get to you? Because those are really long hours.”
He said, “Yeah, but, you know, what are we going to do? It’s the nature of the business.”
Many of my friends who are matrimonial lawyers tell me there is a high burnout rate among professionals working with divorcing couples due to several factors: Continue reading
After being in litigation for 1, 2, 3 or more years, the couple is firmly rooted in their bargaining positions, encouraged by the litigation attorneys. And the attorneys have pounded into their heads how important it is to get exactly what they want with no compromise whatsoever, and if they don’t get what they want, they should walk away from the table and go back to court.
When I get these cases, I have to be honest with them.
“This is going to be very difficult. Mediation works beautifully when you first come to a mediator before all the involvement in litigation takes place. The mediator will go over everything with you, discuss the options, and how you both might compromise – – not in everything, but in certain areas, so you can create an agreement you both can live with.”
This doesn’t mean that you have to give up everything. It doesn’t mean you have to give up what’s most important to you. What it does mean is you have to be realistic. Even in a litigation, you’re not going to get everything. Continue reading
I recently spoke with a matrimonial lawyer. She is 35 and has been going out with the same guy for what she describes as “forever.” While we were having coffee, she said, “Yeah, and I guess we should get married and have kids.”
I was really taken aback by that remark because the decision to get married is often not an easy one. But then to make the leap to “because I’m 35 years old I should have kids?” Has this really been thought through thoroughly?
Usually, before you get married, you discuss with your spouse your feelings about having children, such as:
- Yes, I really want to have children.
- I have a burning desire to continue my blood line and give birth to these little cherubs.
- I don’t have a burning desire to have children.
- Nah, not really. I’d rather pursue my career.
When I first started as a divorce mediator, I really had no model of how to conduct myself and my practice. I would interview prospective clients over the phone, try to answer questions and tell them how we were going to cooperate and work this out together at the mediation session.
About 30% of the people that called became mediation clients. Not a very good batting average. Certainly not good enough for the major leagues.
Instead of the “phone” consultation, I started offering a free “in-person” consultation and quickly saw the advantages. This gives the mediator and the potential clients an opportunity to meet each other face-to-face and see if they can make a connection. Even more than that, as the mediator, I gain an insight into their relationship and the dynamics of their family.
The consultation isn’t just a meet and greet; it’s really an opportunity for me to prepare my clients for the mediation, such as answering:
Do we have to get values for property or some other asset?
If there is a buy out, can one party qualify for a refinance?
Do they need to create a budget to see if their decisions for moving forward are economically feasible? Continue reading
Often divorcing couples come to mediation having done some research or gotten advice from friends. Since this is usually their first divorce, they try to get as much information as they can, so they can be informed as they go through the mediation/divorce process. But this is very much like trying to study the night before the test.
Mediators and attorneys have to understand that clients don’t know this stuff, and we have to be patient in stepping them through the information. Leave the decision making up to them, but help them in getting the information they need to make the decisions. We shouldn’t be impatient when:
They calculate their own child support after deducting expenses not allowed by the child support worksheet
I just completed another divorce mediation on Skype. One spouse was in New York and the other in Europe. Technology allows you to communicate over long distances, with both video and audio. We were able to speak and see the person as if they were right in the room with us – way better than speakerphone.
What was difficult about the mediation was that in this particular European country, the healthcare and educational systems are very different from systems in the United States.