I shouldn’t fault attorneys that don’t understand mediation. When they attended law school, they weren’t taught about mediation or alternative dispute resolution. Attorneys are trained in dispute resolution now, and I have been invited and have spoken at several law schools on the topic of mediation.
Law schools trained lawyers to do what lawyers do: Argue, get evidence that help them argue and then argue some more. Just the opposite of mediation, right? That is why our professions are so different.
As a mediator, I try to help couples resolve their disputes by cooperating and working together.
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 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?”
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.
Recently a prospective client called and asked for some advice. She was wondering if her agreement needed to be modified. And could I help her? She had been divorced for several years and her ex-husband had recently passed away. She was wondering if she was still the beneficiary of his pension and therefore upon his passing, could she receive all of the survivor/spouse pension benefits? She spoke to someone in the HR Department at her ex-husband’s company, who told her that since her divorce she wasn’t the spouse any more and although she was once listed on the designation of beneficiary form as beneficiary, the company didn’t recognize that, because since the divorce, she was no longer a spouse.
I asked her if she had a copy of the divorce decree and what does the separation agreement say.
She said, “We didn’t write a separation agreement. We didn’t want to spend the money on mediating this or hiring an attorney to draft the agreement so we just did it ourselves.”
About a year ago, I mediated a divorce case with a high conflict couple. What was unusual about this case was they agreed to all financial terms before meeting with me. The difficulty was coordinating the process of getting an annulment, which sometimes we call a “Catholic Divorce.” Getting them to agree to meet with the priest for counseling, and then choosing a day and time to go through the annulment process took a couple of weeks of phone calling and emailing.
In the financial part of the Agreement:
- We had property transfers.
- We had businesses to sign off.
- We had bank accounts to settle.
We had lawyers commenting on their agreement, so I had to go back and forth with the lawyers, modifying the Agreement.
As I’ve said in some of my previous blogs, divorce mediation is turning into more of an art than a science. When I first started mediating divorcing couples, I thought I would just learn how to do it and then pretty much plug the information into a standard agreement and keep doing the same thing over and over again. Eleven years later, I realize that I couldn’t have been more wrong.
An example of this is dividing retirement plans. Way back when the stock market was fairly stable (and I’m assuming that at some point investors did consider it stable), a couple would divide the retirement plan value using the date of the signed Settlement Agreement. The market was not subject to the wild fluctuations that we see today, and we would actually put a fixed amount in the Agreement for the non-titled spouse.
Couples are often under the impression that when we write their divorce agreement, I just bring out a form, plug in their names and numbers and it’s done. Not true. The way we write agreements is constantly changing and the main reason for that is the current unstable economy.
Many of us are not earning the salaries we were earning in the heyday of the stock market prior to 2007. Things have changed dramatically, and some of my clients who were earning millions of dollars in previous years aren’t earning that amount anymore. In fact, some of them are earning substantially less, and others haven’t worked in 1-2 years or longer, because the high wage earning jobs they used to have are more difficult to come by.
So how do you calculate child and/or spousal support when one spouse is currently unemployed but has had a history of substantial earnings? Continue reading