What is Mediation? What Can I Expect?

What is Mediation?

How do I know what to expect in mediation.                             

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While mediation is becoming more common, most people who have not actually participated in a mediation still have no idea what it is.  Mediation is often confused with arbitration.  Clients expect that they will meet with someone who will, at best, help them convince the other party to give them what they want or, at a minimum, make a decision for them about the outcome, i.e. tell them what they should do.  So clients usually believe that the best way to be successful in the process is to convince the mediator that their side of the story and what they want is right.  But going into mediation with these expectations will make the experience frustrating. 

Different Approaches

There is no single approach to mediation. What one mediator may do in the room can end up looking VERY different from another mediator’s approach.  In fact, what one mediator does with different clients can vary depending on the type of case and the facts of the case.   

While there is some consistency amongst mediation education programs, not all mediators have the same background, education and training.  Some mediators have received their training through law school mediation courses.  Some are lawyers or judges who have been in practice for many years and went to law school before mediation was ever part of the curriculum.  They may or may not have taken post degree private courses in mediation, ranging from one to five days, or may or may not have completed a mediation degree program through a university. Then there are non-lawyer mediators who may have come from a counseling background, or may have received some kind of interdisciplinary degree in conflict resolution.  At this time, there is no licensing requirement in most states for holding oneself out as a mediator. 

Finally, there are vast differences in mediation approaches that are taught in mediation training programs. You may have heard terms bandied about such as “facilitative” versus “evaluative” versus “transformative” mediation.  These terms are often meaningless to clients, and sometimes even to mediators who are supposed to know what they mean.  Approaches used often depend on what kind of case is being mediated.  Personal injury and employment cases almost always will include attorneys in the room.  Depending on the mediator, the attorney may do all or most of the talking for the client, or the attorney may just sit in as an advisor for the client who speaks for him/herself. In these kinds of cases mediators may be chosen specifically to engage in a more evaluative approach.  In divorce or other family law cases (including probate) parties usually attend mediation sessions without their attorneys, and mediators are more likely to take a facilitative and/or transformative approach.  

I like to say that mediation is a continuum of dispute resolution processes.  It is a tool box that a knowledgeable and skillful mediator can pick and choose from depending on the kind of case that is involved, the individual facts of the case, and what the parties want and need.  I have found though the years, that this view is by far the most common amongst experienced mediators.  Therefore, the best place to begin is to make sure that YOU understand what kind of mediation is taking place, what approach the particular mediator you are utilizing will take, and what will work best for your client’s situation.  

 What to Expect?  Common Features of Mediation

So, given all this, how do you know what to expect in mediation?   

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There are two features that should be present in all mediations.  First, mediation is completely voluntary and a client should be advised that it is his or her decision whether or not to participate in mediation, and whether or not to end the mediation and/or reach an agreement in that process.  Mediation is best defined as a process in which an impartial facilitator assists two or more parties to reach a mutually agreeable resolution of the controversy.  A good mediator encourages and helps each party to make their own decisions regarding the process and the terms under which to resolve the controversy.  

 Secondly, the beauty of mediation is that the parties get to decide what is on the table for discussion and what options for resolution can be considered.  They are not bound by what they can or cannot legally get in court.  In fact, mediation allows parties to talk about what they really want or need in order to walk away feeling like their position was heard and acknowledged.  Sometimes that means that a sincere apology or agreement to take steps to learn how to change future behavior might be a more satisfying term to a settlement agreement. 

 

 

 

Posted in Choosing a Mediator, Divorce & Child Custody, Family Conflict, Mediation Tagged with: , , , , ,

Workplace Conflict and Mediation

Mediation is an extremely good option to consider for workplace conflict and related issues.  Workplace conflict can devastate a work environment, resulting in employee dissatisfaction and absenteeism, unhappy customers and decreased sales and income, or, for service organizations, ineffective provision of client services.  While supervisors and HR are supposed to handle such situations, it is often more cost and outcome effective to bring in an unbiased trained neutral to evaluate and mediate the issues.

Why Consider MediationWorkplace Conflict

A mediator is a trained neutral.  He or she has no vested interest in the outcome of a given dispute.  Because of that, the mediator is able to look at a situation more objectively to help employers and employees identify what the underlying causes of the dispute are and to come up with creative solutions for dealing with those causes.  A good mediator will spend a good deal of time investigating what the issues are and identifying all of the relevant issues and parties.  Studies have shown that mediation can more quickly resolve workplace conflict, reduce levels of employee grievances and is far less expensive than other options.

What Kinds of Disputes in the Workplace Lend Themselves to Mediation

  • Disputes between individual employees
  • Disputes between groups of employees
  • Disputes between supervisors and employees
  • Disputes between employees and customers or clients
  • Difficult employees
  • Workplace bullying
  • Disputes about work conditions
  • Disputes related to personal problems
  • Disputes involving matters which could ultimately lead to lawsuits (such as sexual harassment)

If you are getting the idea that just about any kind of workplace issue can be appropriate for mediation, you are right!

When to Retain a Mediator

Really, the sooner the better.  The longer the dispute goes on, the more likely that one of the involved parties will decide to leave and/or seek costly legal redress.  Early involvement by a mediator keeps parties from becoming too entrenched and  escalating the conflict.  When you get a mediator involved early in the process, all of the parties will be interviewed and feel like they are heard and valued.  Valued employees are loyal hardworking employees.

 

Posted in Business Disputes, Mediation, Organizational Disputes, Workplace Conflict Tagged with: , ,

DOMA Overturned. Should You Get Married Now?

The big news of last week was the Supreme Court’s decision in United States v. Windsor which essentially overturned DOMA (the Defense of Marriage Act).  Same sex couples throughout the nation have been celebrating the news.  But what does it really mean? Should you get married now?  Even if that means going to another state to do so?DOMA

What the Decision Does and Does Not Do

The Windsor decision is a big step towards legalizing same sex marriage.  But, it does NOT actually give any marital rights to gay couples.  It merely states that the federal government cannot refuse to recognize a same sex marriage which has been legally entered into under a given state’s laws.  Currently, only 13 states (including California which was just reinstated as a result of another Supreme Court decision last week) and the District of Columbia allow same sex couples to get married.  The ruling really only applies to any rights or responsibilities offered by federal law.  If you live in a state that does not recognize same sex marriage, you still cannot get married in that state.   The ruling does not strike down any states laws which currently exist that might discriminate against gays.  The ramifications of the decision are complex and evolving on a daily basis.  One of the best resources for getting the facts is the Human Rights Campaign Fact Sheets which can be accessed here.

For a full overview of what the decision does and does not do, go here.

So We are Legally Married–Do We Get All Federal Benefits Now?

Unfortunately the answer to this question is not a definate Yes or No.  It really depends on the circumstances of your marriage and the federal benefits involved.  This video gives a good overview of the issues that need to be addressed.   Some federal benefits, for example the right to file joint tax returns, depend on whether or not you are living in a state that recognizes gay marriage.  So, if you got married in Washington, but live in Idaho, you may still not be able to file a joint federal tax return.  However, the IRS might change this position–which is why this is a constantly evolving process.  For more information, read this fact sheet.

What About Civil Unions or Registered Domestic Partnerships?

Depending on the federal benefit involved, the Windsor decision may give you the right to certain federal benefits if you live in a state in which you entered into a same sex Civil Union or Registered Domestic Partnership.  For example, social security benefits are linked to inheritance laws, which are determined by state law.  But a number of states that allow Civil Unions or Registered Domestic Partnerships grant the same inheritance rights  to same sex couples under the Civil Union or RDP status as married couples have.  Based on that, there is a good argument that such couples would qualify as married couples for social security.  See this fact sheet.

Should We Get Married Now?

This primarily depends on whether or not you live in a state that recognizes same sex marriage and/or only are concerned about certain federal benefits that you might get anyway if you live in a state that has Civil Unions or Registered Domestic Partnerships.  Marriage is a big step, both emotionally and financially.  Before you rush off to another state to get legal recognition you need to look at what your options are and what you want to accomplish.  It might be prudent to wait until more guidance is given by various federal agencies about what they will require to recognize same sex couples.  Once you are married, you then have to consider that you will have to use the legal system if you later decide to separate from your partner, which can be an expensive and complex process, particularly if you marriage occurred in a different state than where you live.

 

 

Posted in Divorce & Child Custody, Estate Planning, In the News, Inheritance, LGBT Legal Rights, Probate, Same Sex Relationships, Uncategorized Tagged with: , , , , , , ,

Is Mediation Less Expensive Than Going To Court?

Is mediation less expensive than going to court?  Yes and No.  And should cost be the determining factor in deciding whether or not to use mediation?  Again, Yes and No.

Is Mediation Always Less Expensive?

While mediation is often less expensive than going to court, that is not always the case.  It often depends on the issues that you are fighting about.  A full blown litigated divorce case which includes issues of how to split assets such as retirement accounts, real property and business assets, along with issues of custody and parenting time and child and spousal support can easily end up costing $15,000 or more by the time the court case is done.   It would be rare for a full blown mediation to cost anywhere near that sum even if you are using attorneys and other professionals such as financial advisers during the mediation process.  However, if you are involved in a high conflict family relationship, a good mediator will need to spend a lot of time developing a safe and effective process to assure that the parties at the table get all the information they need to make fully informed agreements and to do it a way that is safe and empowering to everyone involved in the process.  Read more ›

Posted in Choosing a Mediator, Divorce & Child Custody, Domestic Violence, Family Conflict, Mediation Tagged with: , ,

I Need A Mediator: How to Choose A Good Mediator

You and your spouse are getting divorced.  You both agree that you want it to be as amicable as possible or you go to a lawyer who says that you should try to work things out in mediation.   So now what?  Then you ask yourself:  “How do I find a good mediator?”

Mediators Are Not Generally Licensed

You should know that, unlike attorneys, mediators are not generally licensed and regulated.   Some states have regulations for mediators who are associated with state or court programs, but generally anyone can hang out a shingle, start a website and call themselves a mediator.   No degree is required.   When you see someone calling him or herself a “mediator,” that person may have a law degree, counseling or social work degree, a degree in conflict resolution, or she may have taken a 32 hour training course from a mediator who trains mediators–or he may have no special training or education at all.

How to Choose a Good Mediator

A good mediator should have a blend of skills and experience.  Not all attorneys make good mediators.  Not all counselors or therapists make good mediators or have the knowledge base necessary to do divorce or other specialized forms of mediation.   A skilled mediator knows the law that applies to your situation thoroughly, but she also needs to have the kind of skills that assures that effective communication takes place and both parties feel heard.

Things to know about a mediator before you hire him or her:

  • What is their background and training?
  • Are they on any state or court mediation referral lists?
  • What professional organizations are they a member of?
  • How long have they been mediating and how many cases have they handled?
  • What kinds of cases do they specialize in (a labor mediator isn’t necessarily a good divorce mediator and vice versa)?

But the best recommendation for any mediator, as for any other professional, is what their prior clients say about them.   Ask around from your friends and colleagues about recommendations.   And don’t be afraid to ask for this information before you hire a mediator.

Find a Comfortable Fit

Finally, personality and demeanor are major factors in finding an effective mediator that you can work with.  A mediator may have all the legal and communication knowledge in the world and have written a plethora of articles.  But you need to feel that you can personally trust your mediator and that she is being impartial and fair to both sides at the table, even when she tells you things you may not want to hear.  If you don’t feel comfortable with a mediator the process will not work and you should find someone else.

Posted in Divorce & Child Custody, Family Conflict, Mediation, Uncontested Divorce Tagged with: , ,

Probate Mediation, Estate Planning and Elder Issues

Mediation may be particularly attractive for Probate, Estate Planning and Elder issues.  Factors that are usually present in these matters that can be addressed more adequately in mediation are:

  • Parties have a need to maintain an ongoing familial relationship
  • Parties want to avoid using up assets and funds with the time and expense of litigation (remember Charles Dickens’ Bleak House!)
  • Parties want to keep family matters confidential
  • Strong emotions are involved that court litigation would not address
  • The importance of involving myriad family members and giving them the opportunity to have their say face to face and to be validated
  • Assuring the the elder party gets to have input in the process and a sense of self determinatiion
  • Parties can come up with creative solutions that a court would not be able to order

Often a skillful mediator can help family members address difficult issues that would not be resolved by a court ruling.   If Mom left second son out of her will, all a Judge can do is decide if she was competent when she wrote the will.   If she was, second son is out of luck.  In the same situation, a mediation could bring all the family members together to discuss the reasons behind this clause.  Maybe it was written 15 years ago when second son was sowing his wild oats and wasn’t communicating with Mom.  But those conditions no longer existed by the time of Mom’s death  and he and Mom renewed their relationship.   Mom just never got around to changing her will.  By bringing the family into mediation, the other heirs and family members could decide to share their part of Mom’s inheritance and/or make sure that second son at least gets something of sentimental value from his Mother.

There are many more situations where mediation would help families resolve these kinds of disputes.  We will discuss them more in later entries.

Posted in Elder Law, Estate Planning, Family Conflict, Guardianships & Conservatorships, Inheritance, Probate Tagged with: ,

Do It Yourself Divorce–Is Self Help For Me?

More and more people are opting for the DIY approach or Self Help Divorce in order to avoid both conflict and the huge expense of attorneys.  However, there are some things that you need to keep in mind if you are thinking of taking that approach, even if both you and your spouse seem to agree on everything.

Do I Really Have the Time and Ability to Do Self Help Divorce Properly?

Before you make a decision, take a look at your state’s court websites to see if they have forms and processes available for you to do this and to determine how complicated it will be.  In Oregon, you can look get forms at

http://courts.oregon.gov/OJD/OSCA/cpsd/courtimprovement/familylaw/familylawforms.page

Be sure that you really look the forms and instructions over carefully.  For example, Oregon’s self help forms contain over 20 packet options and while some are self explanatory; others are not and include forms that supplement other packets.  You may find that many forms and instructions are far from user friendly and that you will need some help to complete them.

Do I Really Know What All the Issues Are That Need to Be Covered in the Divorce Judgment and How to Handle Them?

Even if you use court supplied forms, you may not know all the issues that have to be covered in the Judgment.   What impact will it have on your taxes to pay more or less child or spousal support (alimony)? How do you put a value on personal property or a personal business?  How do you handle a home that is worth less than you owe on it?  How do you divide retirement accounts?  The last question requires you to know the difference between various kinds of retirement accounts and, again, how their value is determined.  The most complex retirement funds to deal with are Federal and State government accounts and military retirement funds since they often include other benefits that should be addressed.  Often additional paperwork needs to be filed with the court and/or retirement plan to assure that the retirement account holders give the money to the right person.

What Options Do I Have to Get Help With a DIY Divorce

Some courts have family court assistance offices to help you fill out paperwork.  See, for example, http://courts.oregon.gov/Lane/FamilyandChildren/Pages/Assist.aspx.  However, the staff members in these offices are limited in the kind of help they can give—usually only telling you what forms you need and what you need to fill out in each They are not able to tell you what issues need to be addressed in your individual situation or answer the kinds of questions listed above.  You can also hire the services of a Paralegal.  But, again, they are not able to give advice about options and legal questions.

The best options to assure you get all the information you need to complete the divorce properly are using “limited” attorney services and/or the services of a mediator

More and more attorneys are offering what is referred to either as “unbundled services” or “limited representation.”  These lawyers will meet with you to review your particular situation and give you advice on what issues you need to address in your divorce and how to address them.  Usually this involves one or two meetings with the attorney.  You often have the choice of having the attorney prepare the paperwork for you, or doing it yourself, and having the attorney just review what you have done.

Finally, you could hire the services of a mediator.  While an attorney would meet with only one of the parties to a divorce to give advice—usually from that parties’ perspective, a mediator meets with both parties to address all the necessary issues in a way that meets both parties’ needs.  Again, the mediator may or may not prepare paperwork for filing court or help you with the DIY forms.

As with any Do It Yourself Project, you want to be sure you are not taking on more than you can handle and that you get the advice and help to do it properly.  Hiring someone to fix something after it is done wrong is much more costly.
Posted in Divorce & Child Custody, Family Conflict, Separation Agreements, Uncontested Divorce Tagged with: ,

Lax Gun Laws are Killing Women

As the national spotlight has turned to gun violence in the wake of the Newtown, Conn. massacre, in Congress, there has been some discussion of how gun reform can help domestically abused women. Last week, Sen. Patrick Leahy (D-Vt.) — chief sponsor of the Violence Against Women Act, expected to be reconsidered this week — made the connection between gun violence and domestic violence. Leahy testified in a hearing that in states that require background checks for handgun sales, 38 percent fewer women are shot by their partners.

Yet others have argued that more firearm regulations would make it harder for women to protect themselves — that guns make women more safe, not less.

The evidence paints a much different picture.

According to 2010 FBI data, firearms — and specifically handguns — are the most common weapons used to murder women. In the U.S., 64 percent of women who are murdered each year die at the hands of a family member or intimate partner. In situations involving domestic violence, having a gun in the home makes a woman eight times more likely to be killed.

Excerpted from the Huffington Post. Read the full article here.

 

Posted in In the News

Same Sex Couples, Inheritance and the Need to Dissolve a Domestic Partnership

Did You Know? If you entered into a registered same sex Domestic Partnership in Oregon you have the same rights of inheritance to obtain your partner’s estate as a married person does. Oregon’s Domestic Partnership law gives registered DP’s the same rights as a married person under any applicable state laws.  The problem is that this can lead to unexpected results.  It is very important for same sex couples to LEGALLY DISSOLVE their Registered Domestic Partnership if they split up.  For example, if you don’t dissolve your RDP and you do not have a valid updated will, your “ex-partner” may be able to inherit all of your property as a surviving spouse.  Even if you do have a valid will naming someone else as your designated heir.  your “ex-partner” might be able inherit a portion of your property against the wishes specified in you Will.   

In April and May 2007, the Oregon state legislature passed legislation to make virtually all of the rights afforded to married couples available to same-sex couples. The new status is referred to in Oregon law as a domestic partnership, avoiding the use of the terms marriage or civil union. The law went into effect February 1, 2008. Oregon’s legislation has no ceremony requirement. In Oregon couples are only required to register their domestic partnerships through the submission of a paper form.

Because of this simplified process, many Gay and Lesbian couples became legally recognized by registering without thinking about the full extent of the consequences of this registration.   And, more importantly, many registered couples do not understand the importance of getting the registration dissolved if and when they split up.  The inheritance issue is just one of many that Gay and Lesbian couples could inadvertently end up with results against their wishes or desires.

Posted in Estate Planning, Inheritance, LGBT Legal Rights, Probate, Same Sex Relationships, Separation Agreements Tagged with: , ,

The Violence Against Women Act

Today, President Obama signed a bill that both strengthened and reauthorized the Violence Against Women Act (VAWA). Thanks to the bipartisan agreement, thousands of victims of domestic violence, sexual assault, dating violence and stalking will be able to access resources they need in their communities to help heal from their trauma.

Posted in Domestic Violence, Family Conflict, In the News

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