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Family Law Mediation
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INTEGRATED DIVORCE & FAMILY MEDIATION
Attorney - Therapist Approach to Dispute Resolution
The Legal Perspective
Engaging an attorney/therapist mediation team to resolve your separation and divorce issues is a powerful, effective and efficient way to settle your case. Contentious litigation is a luxury few families can afford .1 The Court recognizes that “a stranger in a black robe”2 - a Judge - should only “decide your case” as a last resort. There is consensus within the judicial and legal community that family disputes are most efficiently and effectively resolved when you and your spouse manage your own issues and resolve them in a non-adversarial setting. Agreements reached in this fashion are less likely to be back in Court post-divorce as the family evolves.
The case of J.K. v. J.G.3 exemplifies what can happened when parties choose high powered litigation firms to advocate over minor disputes. In J.K. v. J.G., there were no issues requiring litigation. The marriage lasted five months.
There were no children, no intertwined bank accounts, no businesses to divide, and no home to be distributed or sold. The argument was over who would keep what household “stuff”. J.G.’s “litigation fees” were $10,271.00. J.K.’s fees were $49,409.17. The Appellate Court pointedly remarked that little was achieved through aggressive advocacy:
“ Other than granting the right to retrieve some personal property, each party retained his or her own property, and each waived alimony.” 3
The case did not end at the trial level. Appeal was taken to determine who should pay counsel fees. The appellate process incurred further legal fees with little to show for it. The Appellate court refused to decide the issue and sent the fee dispute back to the trial court to decide the issue. The case had taken on a life of its own.
This is an extraordinary example of what can happen in runaway litigation, where the financial and emotional cost far outweighs the amount in controversy. To put it mildly, litigated divorce is unlikely to be emotionally satisfying. At the start of court sessions, judges sometimes say, “ Why are you paying so much money to be here ? Is the court house that pleasant a place ?
The Mediation Team Approach
Consider this thought experiment utilizing the fact pattern in J.K. v. J.G. Imagine how this dispute over household “stuff ” would resolve if the parties utilized mediation. In mediation the focus would be on ending the dispute in a conciliatory mutually respectful way with each party receiving a fair share of the household stuff to be divvied up. This end result contrasts dramatically with the drama leading up to a cost prohibitive trial seeking to assess fault for the break up of the marriage.
Assume for the purposes of our example that there is plenty of “blame” to go around. Assume both parties are entrenched in their positions. Assume both parties come to mediation believing only a trial will achieve justice - no matter the cost. Assume the surface issue of who gets what “stuff” is not driving the dispute.
Under such circumstances what happens in mediation where the dispute is emotionally based ? How does the combined experience of both an attorney/therapist team get at the underlying emotional issues so that each party comes to understand the hurt and frustration acted out as anger and rage ?
The initial “get acquainted” meeting: An initial meeting is held to assess whether the parties are prepared to mediate. Sometimes one or both parties demonstrate a profound inability to emotionally self-regulate, in furtherance of bringing peace to their family and ending the court dispute. Normally such assessment can be made within the first five or ten minutes of meeting. In such circumstances the attorney /therapist team may suggest separate mediation sessions with each party; or suggest that the party experiencing self-regulation issues receive counseling before mediation begins.
The process of mediation is described if parties are able to be in the same room without launching into a verbal war with each other at the first meeting :
[a] Mediation sessions take place in a “safe place”. The goal is to have a wide ranging discussion, without fear or concern that the positions tentatively taken will become binding.
[b] The position of the parties and their discussions are barred from disclosure to the Court.
[c] Each party has the right to a review of the settlement terms with legal counsel before signing.
[d] There is no “agreement” unless and until the terms are reduced to a writing and signed.
Parties trying out mediation are happy to learn there is no cost for the initial get acquainted meeting. And further, there is no added cost when both an attorney and a therapist jointly mediate. The answer to the frequently asked question, “ There must be a Catch ? ” is simple. There is none. We choose not to double bill. The average cost for mediation is $1,500.00.
Even when mediation does not achieve a complete settlement, some issues may resolve thus limiting the number of issues in dispute. As example suppose “JR” is about to start his junior year in high school. One parent demands the home be sold now. The other parent says, wait till he completes high school. In mediation considered from different vantage points. Is the home affordable for two more years. Would renting be more expensive than keeping the home. Does the home have substantial equity that will be realized on sale. Is either parent going to remain in the district so there is no school disruption for JR. Would he be better off away from troubled friends. After a wide-ranging discussion if decision is reached to either keep or sell the home, financial support issues clarify. As a matter of arithmetic, what financial contributions are required by each party to keep the house. If sold, how much money will be available for monthly shortfalls going forward.
Over 95% of cases are settled without trial. Settlements save litigation costs. Mediation facilitates settlement where parties and counsel can not agree on anything directly. Mediation can demystify the process. With this explanation, most parties agree to try mediation. While each family is unique, the issues they present are not. August Landi bring to the table decades of experience dealing with the resolution of similar issues. He was one of the earliest adopters of family mediation in New Jersey; and first utilized an attorney/therapist team approach during the late 1970s.
The first working session - identifying issues of concern: Does either parent seek “possession” of the children to the exclusion of the other parent ? Are there parent scheduling issues ? Is Alimony an issue ? Is Child support an issue ? Is use and possession of the home an issue ? Does either party wish to purchase the home from the other ? If so, for how much ? Are present or future college costs of concern ? Are there businesses to be valued ? Would the services of an accountant be helpful ? It takes time and energy to deal with these issues. The mediation team manages, oversees and guides the parties as each thorny issue is addressed.
The practical issues in J.K. v. J.G. could not be simpler: who gets what stuff: “ You get the dining room suite; can I keep the home entertainment center ? ”
Yet over $60,000 was expended before settlement was reached. The parties were unable to sit at the kitchen table, make a list of their “stuff” and pick from the list.
Assume for our example that emotional issues drive a dispute preventing focus on the practical issues to be resolved. How does the attorney/therapist team deal with emotional issues as part of the dispute resolution process ?
The Psychological Perspective
Where emotions are flaring and intruding on the dispute resolution process having a therapist on board is helpful. For many people, divorce is an emotionally wrenching experience that intrudes on the ability to work towards a fair resolution of separation and divorce related issues. I focus on reducing anger, resentment, and pain blocking agreement. The goal is to keep communication lines open, and move the process along towards resolution; rather than leave emotions raw and unattended. Mediation should take place in an emotionally safe environment where contentious issues can be defused and resolved. As a Licensed professional Counselor, this is my area of expertise. Achieving emotional justice through litigation is often an expensive and ultimately unsatisfying exercise.
Self-regulation of emotions is a necessary component to a successful mediation. The need for emotional self-regulation once acknowledged, can be taught. Perhaps one or both parties are not “emotionally divorced” . They naturally feel that by cooperating during mediation will reduce any chance of reconciliation.
During mediation, I help you hear and be heard. Hurt and frustration built up during the marriage threaten to drown out clear commitment to a happy future for yourselves and your kids. Over time there is danger that your children’s emotional development will be stunted if legal and family issues are chronic and unending. Where parenting issues are entrenched, short term co-parent counseling is recommended.
I will make suggestions, provide guidance, and books to read, to help navigate your children to be successful adults. We will discuss how best to ease and guide your children as your family reforms. Looking forward the goal is to attain a healthy co-parenting arrangement to foster the children’s best interests. We will work collaboratively to facilitate preparation of a parenting plan that gives detailed guidance for decision-making in the future, setting up guard rails and boundaries. After mediation ends, you may consult with me for communication "check-ups" and coaching to help you handle events affecting your children.
A successful mediation concludes with each party recognizing the benefits of mediation, both financially and emotionally.
By contrast the attorney’s approach may be far more direct. Why litigate over issues that can be resolved thru mediation. Legal fees mount with each passing month while the case is pending.The cost of the litigation may far exceed the benefit, i.e the value, of the issues in controversy. If so why litigate ?
Additional Mediation sessions: If all goes well, over the course of several mediation sessions a simple one or two page “Term Sheet” is prepared containing the agreement settling the case.
Term Sheets are subject to review by separate legal counsel before signing. Once signed, Term Sheets are binding on the parties4. If a divorce is pending, the Court is notified the parties have settled their case. The details of why the parties are divorcing are rarely of concern to the Court. The entire process should take not more than three months.
The mediation cost for the attorney/therapist team is generally less than five [5%] percent of what J.K. & J.G. were charged in their case.
To be clear, mediation is not appropriate in every case. If it appears that mediation would be a forum for systemic bullying, over-bearing conduct, or other oppressive and controlling conduct, mediation would not be suitable. If there is an outstanding domestic violence order mediation can not proceed without safeguards and arrangements requiring modification of the domestic violence order. If it is difficult for the parties to be in each other’s presence during working mediation sessions, the mediators can meet separately with each party in different rooms.
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