Posts on Mediation from Martin Rosenfeld, jD

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Collaborative Divorce/Martin Rosenfeld,JD

 (Written 1/12) Collaborative divorce allows attorneys and parties to view the divorce process as something other than adversarial and confrontational. A recent post appeared on the web by Jen Weigel entitled “Can Your Divorce Be Collaborative?”. Among other suggestions, Ms. Weigel has four positive suggestions. These apply to all those involved in divorce, whatever the process. The four points that resonate are:

1. Do not badmouth your ex. This will come back to hurt many parties.

2. Acknowledge any mistakes you make. An occasional apology,too, will help.

3. Avoid Emails. It is too easy to send the wrong message at the spur of the momemt.

4. Put yourself in their shoes. The quote favored by President Kennedy was “May I not judge my fellow human until I walk a mile in their moccasins.”

Much food for thought lies in the above four comments

Divorce in Later Years/Martin Rosenfeld, JD

(Written 6/13) Attorney Denise Tamir recently wrote about “Gray Divorce” (divorce among those 50 or older) at mediate.com. The divorce rate among older individuals has risen from 10% in 1990 to 25% in 2013. The change in divorce rate is possibly due to the fact that women earn greater salaries today and are less fearful of life after divorce. In addition, as women live longer lives, they realize that life has much in store for them even as they enter middle age. Why therefore remain in an unhappy relationship? It is also possible that many who divorce in their 50’s have been divorced previously. They know what to expect and do not fear the dissolution process. 

What does this new development mean for society? Divorce is always a traumatic event. However, it is likely the case that older couples who divorce tend to be more rational and less bitter than would be their younger counterparts. Given this theses, it is reasonable to assume that such parties are more likely to see the benefits in divorce mediation and a Win-Win approach to divorce.

There was great surprise registered in many circles when Al and Tipper Gore announced their divorce after many years (seemingly happy) of marriage. One never truly knows what goes on in their neighbor’s household. It should not be a source of surprise when older couples, often married for many years, seek to divorce. Perhaps the takeaway is that life is too precious to be spent in unhappy relationships. More significant is the fact that divorce need not be a “fight to the finish”. Divorce mediation is a key for a civil approach to “gray divorce”. In point of fact, it is also a civil approach to divorce for those who still have not seen the trace of gray in their hair. Win-Win makes sense at all age brackets.

On Mediation

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On-Line Mediation/Martin Rosenfeld, JD

(Written 5/13)   

There are times when getting both parties in a divorce action to a mediator is a difficult chore. the parties may live far from a mediator, the parties may live in different states, they may have differing work schedules, etc. Although it is not the preferred method, in some cases it is appropriate to consider mediation via telephone or Skype. (This post will not consider on-line mediation as such a method can only work well where there is a commercial dispute that can be reduced to a short paragraph by each party why e.g. the product was or was not defective. Divorce mediations need a constant flow of discussion that cannot be afforded by on-line exchanges.)

A mediation where the parties are not all present together is less formal and less focused. Even where parties can be viewed on Skype, they forget that they are being observed. It is not unlikely that a party will be distracted by a Ipad, shopping list, crying child, etc. Clearly, the likelihood of such distractions when all are assembled in one room is greatly reduced. Some aspect of body language is compromised by a Skype conference. In many ways, body language is as important as oral communication. The cues afforded the mediator by observing reactions to proposals is compromised in remote communications. A remote communication, to sum it up, is likely to get a less focused participant that would be afforded in a face-to-face meeting.

There are definite advantages to a remote mediation. It is a far better option than bypassing on a mediation option. Half a cake is better than none. Indeed, it is more than half of a cake. In addition, the convenience of a remote mediation likely opens the possibility for mediations that otherwise would not take place. There are no traffic jams to the mediator’s office, no excuses about the timing of the meeting, and no need to meet the other party in the same room. While parties need to negotiate with each other in person, when possible, it does lead to some anxiety. A remote mediation will alleviate this concern. It is also likely that the relaxed tone and pace of a remote mediation can produce better results in a shorter time than would be afforded in a traditional mediation. 

In any mediation, it is advisable that you only retain a mediator who does not require a retainer for her services. If a remote mediation is a possibility, give it a chance to succeed. If you do not like the results, do not continue with it. If it works well on the first session, see it through to the end. Winston Churchill once said that democracy is the worst form of government except for all other forms that have already been tried. Remote mediation an imperfect system. It is only better than any form of litigation. That is saying a great deal.

A Mediation Query/Martin Rosenfeld, JD

 (written 4/17)  I saw this quote by  author Jane Green:

I am divorced, and one of the things I am tremendously grateful for is that my ex-husband and I made a decision to go through mediation. I knew a trial would drag on for years, would cost me everything, but worse, would be devastating for our four small children.

My query is this: Change the word “mediation” to litigation. How many people would be grateful for such a decision? If you said zero, you are likely correct.

Mediate don’t litigate.

Marital Mediation/Martin Rosenfeld,JD

 (written 1/14) There is a website that is dedicated to promulgating articles and insights into the new field of marital mediation. Not surprisingly, the website is found at maritalmediation.com. One of the articles that deals with marital mediation is found at http://www.maritalmediation.com/2013/11/marital-mediation-different-marital-counseling. This article is authored by an attorney and divorce mediation, Laurie Israel, Esq. Unlike marital therapy which deals with feelings and a search for understanding of behaviors that have arisen, marital mediation deals with behaviors that have led to conflict. It deals with actions and tries to reduce the conflict that has arisen. The question a marital mediator might ask is quite different from the stereotypical “How does that make you feel?”. More likely, the question will be “What are you planning to do?”. 

Not everyone has the time or resources to go through a lengthy therapeutic regimen. Marital mediation is short-term and non-invasive. Its goal is the creation of a more productive negotiation style for the marital pair. The website is well-produced and is worth a look-see.

The Cost of Divorce/Martin Rosenfeld,JD

 (written 2/11)  An article on the economies of divorce was recently penned by Kathy Kristof. Ms. Kristof cites a study of a Divorce Attorney, Mark Baer, who found that married couples have more assets than do individuals only so long as they are married. Upon divorce, there is an economic equality between that same couple and the average individual. Where did the economic advantage go? You probably guessed it. That money went to pay divorce attorneys.

According to Attorney Baer: “By the time you pay the legal fees, you’re going to spend more than the amount you were fighting over.” Ms. Kristof suggests that instead of investing in divorce attorneys, couples should rather pay for therapists and courses in co-parenting.

Most cases will lead to a result where marital assets are split virtually evenly. Attorney Baer therefore recommends that the couple split assets themselves via bank statement, stock statement, and credit card statement review. A house can be appraised as can the value of a pension plan. There are many ways to divide these assets, once they are identified. Mediation provides one such option. As Ms. Kristof concluded:'”Anything you can do to reduce fights will reduce costs.”

Equity and fairness goes a long way. You can mediate, discuss, arbitrate your differences or you can support the legal profession via handsome legal fees. If you wish to cut the cost of divorce, the former option would appear to be best for each party. Try your hand at civil divorce. It is clearly in your interest.

A Divorce Quote/Martin Rosenfeld, JD

(Written 2/15) I was looking at some quotes about divorce. Some are elevating, some are syrupy, and many are plain sad. Then there was this one by Margaret Trudeau: “It takes two to destroy a marriage.” If you are unsure if your spouse deserves the civility of a divorce via mediation and the path of Win-Win, ponder Ms. Trudeau’s words. It does indeed take two. And it takes two to bring a marriage to an amicable close. Mediate don’t litigate. 

On Mediation