Agree to Agree

Re-post from The Huffington Post

2012-01-25T16:01:00.000-06:00

Good article from the Huffington Post on divorce mediation. I like the following description:

Divorce mediation is an out-of-court dispute-resolution tool that helps people settle their differences sensibly and with the legal system having only minimal involvement.

It provides a structured process that minimizes the defensiveness and friction that are normally present during spousal settlement conversations. It does this by creating a non-confrontational atmosphere that encourages the spouses to put their best foot forward when they are presenting their thoughts and concerns to one another.

I also like the caveat at the end of the article - and I agree fully that there is no down-side:

Divorce mediation is not for every couple, and it is not for every situation. However, it has no down-side and can help people save time, energy, and expense, not to mention wear and tear on the family unit.

Check out the full article at: http://www.huffingtonpost.com/j-richard-kulerski/what-most-people-dont-kno_b_1220249.html

ADR in 2012 – A Good Start to the Year

2012-01-24T11:00:00.002-06:00

As 2012 gets underway, alternative dispute resolution (ADR) methods - such as mediation, arbitration and collaborative law - continue to get headlines across the country. A recent article from The National Law Journal discussed the growth of ADR nationally and the prospects for continued growth. (http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202535040657&slreturn=1) Here in Alabama, both the Alabama Bar Association and Birmingham Bar Association have active ADR sections that are providing community education and outreach programs, as well as lawyer education. Judy Keegan and her staff at the Alabama Center for Dispute Resolution (www.alabamaadr.org) continue to provide invaluable resources to our State, and I am glad they are there to back up the Alabama ADR community.

As outlined in an article from The Denver Post this week (http://www.denverpost.com/business/ci_19797362), divorce mediation is a trend that continues to grow – and that is a good thing. More couples should take control of these important decisions and do what is necessary to preserve relationships and civility during their divorce. In a related vein, Collaborative Law continues to pick up steam in Alabama, providing an opportunity for families facing divorce to truly work in a respectful and constructive manner to achieve a resolution to their divorce that can provide for growth and healing. And I am convinced that Collaborative Law has applications outside of divorce and family disputes. The efforts locally by the Birmingham Collaborative Alliance (www.birminghamcollaborative.com) and nationally by the International Academy of Collaborative Professionals (www.collaborativepractice.com) can only help this model to spread and provide folks facing many types of disputes another avenue to reach resolution.

There are other areas where ADR is getting media attention as well. The recession has lead many states to adopt programs for mortgage foreclosure mediation. While the results have varied from state to state, these programs are still being explored as avenues to provide relief to homeowners. From the world of sports, the Big East Conference has been ordered to mediate with West Virginia University regarding that school’s desire to join a different conference. All these trends are positive, and should be encouraged.

I will keep spreading the word about ADR options here in Alabama. The more educated businesses and people become regarding their options for resolving disputes, the better for everyone. As our courts continue to face large backlogs of cases with ever shrinking budgets, ADR will provide the most cost effective and time efficient means to reach the right result.

Good Advice for Clients Discussing Mediation with Counsel

2012-01-04T10:05:00.002-06:00

Thankfully, most lawyers I've worked with believe in mediation. However, there are those out there who will try to undermine collaborative processes. Good advice for clients in this article.

http://www.huffingtonpost.com/henry-gornbein/how-lawyers-can-sabotage-_b_1172733.html

Food for Thought When Hiring a Divorce Lawyer

2011-12-05T09:28:00.000-06:00

I have the opportunity to work with many talented lawyers and their clients. It is truly a privilege to have people put their trust in me to help them resolve the most important issues they face. This article from The Huffington Post gives good advice to clients who are seeking divorce counsel and dispels the myth that the meanest divorce lawyer is necessarily the most effective. As with all relationships, the key to the attorney/client relationship is trust – the client must trust the attorney has their best interests in view. As a mediator, I strive to build trust with both clients and attorneys from the outset so we can reach the best and most effective result. The advice here is practical and should be heeded by anyone who has to hire divorce counsel.

http://www.huffingtonpost.com/sharon-zarozny/nasty-or-nice-what-kind-o_b_1114272.html

Mediation Week - Continued

2011-10-20T11:11:00.002-05:00

As I posted earlier this week, the American Bar Association has desgnated this week "Mediation Week." Here in Alabama, Governor Bentley has proclaimed tomorrow "Mediation Day in Alabama." Thanks to the Birmingham News for publishing my article this morning on the benefits of mediation. A link to the article follows:

http://blog.al.com/businessnews/2011/10/memorandum_mediation_offers_a.html

So it is "Mediation Week" - Why Should We Care?

2011-10-17T13:16:00.003-05:00

The American Bar Association has designated the week of October 16-22, 2011 as national “Mediation Week.” Governor Robert Bentley signed a Proclamation declaring October 21, 2011 as “Mediation Day” across the State of Alabama. So what? Why should Alabama businesses and consumers care about such things?

They should care because mediation provides them a more cost-effective, time efficient and comprehensive way to resolve disputes than litigation. According to the Alabama Administrative Office of Courts, last year over 37,000 civil cases and 5,000 divorce related cases were filed in Jefferson County. This does not include the backlog of already pending cases. With State court cutbacks and the never-ending battle over Jefferson County’s finances, the court system in Jefferson County is bursting at the seams. The costs for litigation increase as cases have to wait longer for trial dates – not to mention the increased stress on the parties as their disputes drag on. Mediation provides a better path to resolution.

So how does mediation work? The mediator (a neutral third party) provides a forum for open communication and guides the parties’ negotiations so that they reach an informed and mutually acceptable result to their dispute. By agreeing to mediate, the parties use their intimate knowledge of the situation to reach a solution that is tailored to their needs. Advantages of mediation:

- A “win-win” for the participants – not a decision by a judge or jury

- Less expensive than litigation

- Promotes continued relationships

- Moves more quickly than litigation – and usually with less stress

- Confidentiality—no public record

- Scheduled to the convenience of the parties

- Clarity and mutual understanding of the results achieved

Mediation is a very effective tool for resolving:

- Civil lawsuits - including personal injury claims, consumer disputes, breach of contract, fraud claims and other similar matters

- Family law disputes such as divorce, child custody and support issues

- Estate, probate and elder care disputes

- Employment disputes

- Business-related disputes

- Disputes between neighbors or within a community

Mediation is not arbitration, nor is it a trial. The mediator is not making a decision for the disputing parties. The mediator guides the parties to reach their own decision, and promotes respect and dignity for all participants. Statistics show that when parties to a dispute actively participate in crafting its resolution, they are more satisfied with the outcome and are more likely to abide by its terms. Mediation truly provides a win-win for the participants.

Difficult times require creative solutions. I am encouraged by the efforts of the ABA and Governor Bentley in promoting mediation. The public needs to know that there are more civil, more cost effective, faster and less destructive ways to resolve disputes than lengthy litigation. Mediation gives the people involved a chance to shape a resolution that fits their specific needs in a creative and constructive way, with neither side ending up on the wrong side of a judgment. I hope the people of Alabama take the time to explore their options before racing to the courthouse.

Great Quote and Goal for Life

2011-10-06T11:09:00.000-05:00

Life is not a series of accidents. It is a collection of purposeful acts and decisions that we make. When we choose to be purposeful in our commitment to using our individual powers for the advancement of the collective good, then we are in search of the sacred. When we purposefully strive to live our lives in accordance with the highest universal values, then we merge with the sacred. When we give over our lives to the calling of healing, justice and love, then we bring sacredness to the lives of others and to the world.

David Hall, LLM, JD, from “In Search of the Sacred,” The Collaborative Review, Winter 2005, p.29.

Collaborative Law Comes to Alabama – FINALLY!

2011-09-20T15:14:00.000-05:00

What a privilege it was to participate in the first ever interdisciplinary collaborative law training in Alabama! This past weekend, approximately 40 like-minded professionals from the worlds of law, mental health and finance came together to learn how we could work together in teams to make the process of getting divorced less destructive, more dignified and respectful, and tailored to the needs of the family going through it - because marriages may end, but families do not.

Collaborative law is a process in which the parties to a divorce hire lawyers and other appropriate professionals trained in collaborative practice to negotiate a resolution of their divorce. The parties agree that a lawsuit will not be filed and that all exchanges of information will be voluntary and completely transparent. In order to ensure that the negotiation process is followed, the parties not only agree to voluntary participation, but they along with their lawyers and other team members agree that if the process fails, the lawyers will not represent the clients in an adversarial proceeding. The theory is that if everyone agrees to the process, and knows going in that litigation cannot happen (at least with their collaborative lawyers and team professionals), the incentive to negotiate and treat each other fairly will lead to an acceptable resolution. The process allows for other “nonparty participants” to be part of the process – financial professionals, divorce coaches, child specialists (collectively with the lawyers “the collaborative team”) – to help the parties address their individual needs and concerns, the needs of their children, and to shape the appropriate agreement to address those needs. The process is privileged and confidential and the communications made during the process cannot be later introduced in a trial.

We had a top notch training staff, including the women who literally wrote the book (“Collaborative Divorce” HarperCollins Publishers, 2006), Pauline H. Tesler, M.A., J.D., and Peggy Thompson, Ph.D. Joining Pauline and Peggy was Lisa Schneider, CFP, CDFA – a long time regular member of their collaborative teams from the San Francisco Bay Area. The three days we spent with our trainers were equal parts challenging and invigorating. I hope I speak for the entire group when I say we walked away with no doubts that the collaborative model is the healthiest, most equitable, and one of the most cost effective ways a family can traverse the minefield of divorce.

There are over 20,000 trained collaborative professionals practicing in at least 19 countries worldwide. This model has been adopted, approved and promoted by numerous judges, state appellate court justices and bar associations around the U.S. Here in Alabama, Robert E. Lusk, Jr., assistant General Counsel to the Alabama State Bar Association, has confirmed for us that collaborative law is alive and well in Alabama and in full compliance with the Rules of Professional Conduct (note to those lawyers who still want to question whether collaborative agreements are ethical – this should allay your concerns. Please feel free to call the Bar if you have questions about the ethicality of this process). Further, the National Conference of Commissioners on Uniform State Laws has promulgated the Uniform Collaborative Law Act, which has been proposed in the Alabama Legislature by Senator Cam Ward.

The process just makes sense. Lawyers are freed up from trying to wear every hat to focus on what they are trained to do best – address legal issues. Divorce coaches and child specialists, who are trained mental health professionals, help the parties address the emotional and decision making needs and insure that the children have a well trained voice in the process that is all their own. A neutral financial professional gathers the data related to assets, debts, expenses and the like, and presents a neutral picture of the marital estate so that everyone is working from the same – and most importantly accurate – picture of the family’s financial position. That same neutral financial professional also helps everyone understand the financial implications of the decisions the parties are making under however many scenarios the parties want to look at. The end result is an agreement that addresses the needs of the entire family that the parties themselves have created with the assistance of the proper professionals – and those professionals remain available to the family after the divorce as they transition into the next stages of life.

Common questions come up when discussing collaborative law: How can a process involving all those professionals be cost effective? Won’t the process take forever with all those professionals in the mix? The answers are fairly easy.

First, clients are not paying lawyers (typically the highest hourly rates on the “team”) to try to be financial professionals digesting and explaining the complexities of finances. Nor are clients paying their lawyers’ hourly rates to address every anger or emotional issue that arises – and lawyers are inherently the wrong professionals to bring these types of concerns to anyway (we typically, although not always intentionally, end up throwing gasoline on the fire). Further, clients are not asking lawyers to make their best guess at what is the proper role for each parent with their children after the divorce.

Also, clients are not paying for multiple trips to the courthouse for their lawyers to attend hearings or try the case. On any given day in Birmingham, there are approximately 2,500 divorce cases pending and those cases take on average anywhere from a year to eighteen months to reach trial. Comparatively, the collaborative process will typically take a matter of a few months to reach resolution. The biggest plus of collaborative law is that clients are not leaving the most important matters in their life - the involvement of each parent with their children and how post-divorce financial issues will be handled - to a well-intentioned complete stranger (the trial judge) who listens to a few hours of testimony and makes his or her best efforts to make those decisions for them. The clients make fully informed decisions for themselves.

The process takes less time than it takes to go to trial or settle your case on the courthouse steps, and the time that is spent is divided between various professionals at hourly rates that are appropriate to their professions. The process is quicker and less expensive than litigation and nowhere near as destructive.

Collaborative law promotes dignity and respect. It is tailored to the family in question. It is fair. It is confidential. It is transparent. It is cost effective. It is time effective. It works. I look forward to watching this model take hold in Alabama and am proud to call myself a collaborative professional.

For more information on collaborative law, please check out the following sources:

http://www.collaborativepractice.com/

http://www.birminghamcollaborative.com/

Birmingham Bar ADR Seminar – an Update from the Bench

2011-09-09T09:32:00.000-05:00

I participated in a panel discussion yesterday at the Birmingham Bar Center regarding how ADR can help ease the backlog of cases currently facing all divisions of our courts in Jefferson County. I was honored to be on this panel with our presiding judge, Scott Vowell, criminal judge Stephen Wallace, domestic relations judge Julie Palmer, mediator John Hall, and attorney Anthony Joseph. I send out a special thank you to Michael Trucks for thinking of me to fill his slot on this panel when he became unavailable to participate. I appreciate any opportunity to speak about ADR issues as I believe strongly in the process and am committed to spreading the message.

A number of topics related to ADR and the courts were presented to a group of about 35 lawyers in attendance. An overriding theme was the current cutbacks our courts face. The numbers of cases stuck in the system is staggering – in the domestic relations (divorce) courts alone on any given day there are approximately 2,500 cases pending, and many stay in the system for a year to 18 months or longer! Mediation can help move cases through the system – while providing better results for the parties in a cost effective manner. Spreading the word is the key.

We discussed a number of great ADR programs working in our courts – volunteer mediation dockets in district civil and domestic relations courts, pro bono mediation available in circuit court, proposals for mediation in criminal cases, work with the Birmingham Volunteer Lawyers Program, the Cumberland School of Law Community Mediation Center and its program for mediating college support cases at the Jefferson County Family Court, and the upcoming Collaborative Law training. Birmingham has a very diverse and vibrant ADR community. Our ADR section of the Birmingham Bar is doing a great job to spread the word that better alternatives are out there. I am committed to doing my part – and I hope the legal community will take greater advantage of the resources available to help ease the burden on our courts during this time of budgetary cut-backs.

Focus on the Decision Maker - Not on the Deal

2011-08-25T11:58:00.000-05:00

This article is a great reminder of where the focus in mediation needs to be. I've never been a fan of pushing mediation sessions late into the night just to "get it done today" or "strike a deal while we have everyone at the table." Decision makers need to pace themselves to make the best decisions - not be put in a position of late day fatigue that leads to a rushed decision.

http://www.nytimes.com/2011/08/21/magazine/do-you-suffer-from-decision-fatigue.html?pagewanted=1&_r=1

Great Article from Business Standpoint

2011-08-17T11:40:00.000-05:00

Mutually beneficial. Final. Creative. Addresses issues a lawsuit never could. Preserved relationships. Cost effectiveness. Faster resolution.

This article from PropertyCasualty 360 hits every reason why businesses should mediate disputes with customers, partners, contractors, etc. It just makes sense.

http://www.propertycasualty360.com/2011/08/16/opinion-the-benefits-of-mediation?t=loss-litigation

New Jersey Court Upholds Enforceability of Mediated Agreements

2011-08-10T12:20:00.000-05:00

On August 9, 2011, the New Jersey Superior Court, Appellate Division, released an opinion in the case of WILLINGBORO MALL, LTD. v. 240/242 FRANKLIN AVENUE, L.L.C., upholding the enforceability of agreements reached through mediation. While not the official reporter, a copy of the opinion is available on the Leagle website:

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20NJCO%2020110809297.xml&docbase=CSLWAR3-2007-CURR

The case involved a commercial real estate dispute that was referred to mediation by the trial court. After several hours of mediation, the parties reached an oral agreement. Three days later, counsel for one of the defendants circulated a letter to all counsel and the trial court outlining the terms of the settlement. A few days after that, the defendant notified all parties and the court that the settlement funds had been escrowed. The plaintiff refused to go forward with the settlement, asserting no agreement had been reached. The defendants filed a motion to enforce the settlement, including a certification from the mediator, who was later deposed and testified at trial.

The trial court enforced the settlement and the plaintiff appealed, arguing that any settlement not reduced to writing and signed at the mediation was unenforceable and that enforcement of a settlement reached at mediation was contrary to the non-binding nature of the mediation process.

The Superior Court affirmed the trial court, finding that the Uniform Mediation Act, as enacted in New Jersey, did not require an agreement to be reduced to writing and signed before the parties left the mediation session. As the Court stated, “To be sure, preparation of a writing memorializing the agreement at the mediation session may be the preferable and advisable course. We must recognize, however, that some disputes may be complicated and the writing memorializing the agreement may require some time to produce.” The Court found the letter drafted three days after the session was sufficient for enforcement under the circumstances of the case.

The Court also pointed out the plaintiff’s misinterpretation of the non-binding nature of mediation:

Plaintiff’s position also ignores the reason for referring a matter to mediation. The process is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. (Internal citation omitted) In contrast to arbitration, the mediation process is non-binding only in the sense that the process is not designed or intended to impose a result on any party. Indeed, such a result is the antithesis of the mediation process. Mediation is also not intended or designed as a meaningless and impotent detour on the way to judgment. The very purpose of the process is to resolve the dispute.

Finally, the Court noted that enforcing a verbal agreement reached at mediation would be difficult due to the confidentiality of the process. However, the parties had breached that confidentiality and the trial court had ruled on that waiver of confidentiality. The plaintiff did not contest the trial court’s rulings on the waiver on appeal.

Mediating Elder Care Issues - Saving Families and Protecting Dignity

2011-08-08T11:15:00.000-05:00

This is a great article on the issue of mediating disputes involving care for elderly parents. Elder care is a growing area for mediation and these disputes can be very difficult for the families facing them. Not only are there many financial considerations involving care for an elderly or ailing parent, but there are also many emotional costs that mediation can can help the family address. I encourage families facing these issues to consider using a mediator - either alone or in conjunction with other professionals such as financial planners or health care providers - when the decision making becomes contentious. Family relationships can be mended while dignity and civility are protected through the process.

http://www.aarp.org/relationships/caregiving/info-08-2011/parents-aging-elder-mediation-author-speaks.1.html

Mediation for Government Gridlock? If only it would work....

2011-08-02T11:14:00.000-05:00

This post from The Hill is on point. It would be wonderful if our elected officials - whether nationally, statewide or locally - could work together well enough to at least agree that such a plan such as this would be worth exploring. It would be even better if our elected officials could treat debate in a serious and civil manner with the goal of reaching compromise on important issues of policy. Unfortunately, it seems at all levels of government rhetoric drives the day and taking steps towards making real compromise only comes late in the 11th hour and gives rise to mediocre results. We should not only expect, but also demand better from our elected officials.

http://thehill.com/blogs/congress-blog/politics/174815-government-gridlock-try-mediation

Mediating Landlord - Tenant Disputes

2011-07-26T11:09:00.000-05:00

Landlord-tenant disputes are tailor made to be resolved through mediation. The process is much faster than litigation, and the parties have a better chance at reaching a mutually beneficial result. Programs like the one described in this article just make sense. In these hard economic times, I hope more people take advantage of mediation to resolve these types of disputes.

http://www.digtriad.com/news/gms/article/184251/67/Mediation-Program-Helps-Resolve-Tenant-Landlord-Disputes

Collaborative Law is Coming to Alabama

2011-07-21T10:04:00.000-05:00

I am excited by all the publicity the Birmingham Collaborative Alliance (http://www.birminghamcollaborative.com/) has been able to generate among the local and State bar associations for their upcoming training sessions. One of the best descriptions of the collaborative law model comes from an e-mail sent to members of the Alabama State Bar Association by Judy Keegen, the executive director of the Alabama Center for Dispute Resolution (http://alabamaadr.org/):

Collaborative law provides a private, voluntary, no-court option for resolving divorce and other family disputes. It is utilized by parties who prefer to avoid the costs and stress of litigation. The collaborative process provides a method for respectful and open discussion designed to generate creative solutions for important issues. Everyone involved, both spouses and their attorneys, pledge not to litigate, but to work to settle the case by agreement. This client-centered process provides more predictability and may lower costs. Parties may engage the services of a neutral financial analyst, a child specialist or coaches to work with them as they collaborate.

I hope this model takes hold in Alabama and provides families facing divorce with more options to resolve their disputes in a peaceful and meaningful way. The training sessions will take place September 15-17, 2011.

July 15, 2011 Birmingham Business Journal, "With JeffCo Court Delays, Try Mediation"

2011-07-15T09:05:00.000-05:00

The Birmingham Business Journal has published an article I wrote concerning the current court backlogs in the Birmingham area. I encourage businesses to consider mediation as a way to save money and time while decreasing frustration and preserving confidentiality. I also suggest the use of mediation provisions in contracts as a preferred dispute resolution option. I have attached jpeg images of the article here. The article can be found on the BBJ's website (subscription required): http://www.bizjournals.com/birmingham/print-edition/2011/07/15/with-jeffco-court-delays-try-mediation.html

Great Mediation Article by John Hall in the Alabama State Bar Addendum

2011-07-01T08:21:00.000-05:00

This article is right on point. Well worth the read.

http://www.alabar.org/publications/addendum_articles/june11/mediation%20.cfm

Where is the "Win" in Divorce Litigation?

2011-06-23T09:45:00.000-05:00

Celebrity divorces make headlines, but most divorcees aren’t celebrities. They are everyday people in a tough place emotionally. They work hard, love their kids and want to be involved in their lives. They have a mortgage, a few credit cards, a car note and limited resources to meet their obligations. They are distrustful, hurt and scared. They need encouragement, guidance and counsel. They want reassurance, security and closure. And they want it quickly and inexpensively.

Divorcees need to vent anger and tell their story. Society tells them to go to court and take a pound of flesh. The focus is on “winning.” But when a divorcee thinks she spent a fortune on a lawyer and didn’t get what she wanted, the client blames the lawyer who worked hard and gave her that day in court. Who won?

As a mediator, I work with everyday people and their lawyers in divorce cases. Most lawyers recognize that a judge making decisions for their clients is typically not the best solution. However, it is difficult for clients to hear that compromise is a must to reach a mutually fair result. Often, the “let’s try the case” approach wins out. Litigating a divorce can increase the pressure for divorcees - sitting in the courthouse the day of trial, facing two options: 1) engaging in fast moving settlement talks, then signing a fill-in-the-blank agreement to address the most important aspects of their lives or 2) Having a third party, a judge, make the final call on a deeply personal matter that becomes public record. No wonder divorce clients are frequently dissatisfied!

Our local court backlogs intensify these frustrations for clients and attorneys:

Client - Why is this taking so long? Everyone is dragging their feet. Why do they need all these documents? Do I have to answer all these questions? All I want is to get this over with and move on. The lawyers are running up fees. The judge doesn’t get it. This is awful. I’m wasting time and money and getting nowhere.

Lawyer - I did everything in my power. I questioned the other side extensively. During the many months we waited for trial, I subpoenaed cell phone records, bank statements, and the kids’ teachers. I spent several days preparing for trial and tried the case. Now my client isn’t happy and doesn’t want to pay my bill. You can’t win with divorcees – they are never happy.

Divorcees should be proactive in researching their options to reach an agreement that provides closure and a foundation for moving forward. When the parties walk away with more anger and frustration, a court order nobody thinks is fair and distaste for the lawyers who have worked hard on their behalf, nobody wins.

Statistics show that couples who collaborate to resolve their divorces have greater satisfaction with the process and are more likely to abide by the terms of an agreement they helped shape. Resolution is reached quickly and with less expense than waiting for a trial – especially with courthouse budget cuts. Divorcing couples need to explore all options - not just on the best strategy for “winning” at trial. Mediation allows individual stories to be told, needs expressed, and outcomes shaped confidentially (no dirty laundry is aired on the record). With patience, compromise and hard work, divorcees can reach results that are right for them and their family.

Saving time and money, bringing closure while preserving dignity, maintaining civility, and resolving hostility is where the “win” really lies.

Myths and Misconceptions

2011-06-14T09:22:00.000-05:00

I recently attended a family law seminar. Many good ideas were exchanged and useful information was shared by a panel of very talented lawyers and judges. However, one recurring theme struck me – just how expensive divorces can be and how nobody really takes the time to address the cost for everyday folks.

One presentation was a mock mediation. Though very well done, the only fact pattern presented involved above average income clients. In the scenario, the parties were a college professor and a real estate agent who both had 6-figure salaries, two houses, $765,000 in retirement savings, $20,000 in cash savings and only $5,000 in credit card debt. A cost of $30,000 for one side to prepare for and try the case was suggested without anyone involved blinking an eye. I thought about the majority of the folks I help - they don’t fit that profile. And I bet most of the lawyers there didn’t have clients that fit that mold either.

There was a panel discussing “unusual issues” in divorce cases. They focused on issues for high asset divorces. One discussion was on the use of post-nuptial agreements for the “society pages” set. I found one discussion disturbing - a suggestion that a bill would be proposed next year to allow wealthy people to hire “private judges” to handle their cases as if they were elected sitting trial judges. The cases would have all rights of appeal as any other divorce case, but people who could afford to hire a retired judge to handle their case would not have to wait with everyone else in the backlog of cases waiting for trial. One speaker justified the cost by saying, “We can pay the judges mediator rates since people with money have been using mediators for years anyway.”

I was left shaking my head – first at a proposal for the wealthy to bypass elected judges and hand pick who would handle their cases while the average person is stuck in the bog of court backlogs – quick justice for the highest bidder. Second at the idea (misconception is a better word) that only people “with money” can mediate their cases. It is no wonder the myth that mediation is an expensive undertaking is so pervasive. Mediation is a cost saving option for everyone – not just the “society pages” set. There were lawyers from all over the state at this seminar. Many came from smaller rural counties. The takeaway message – your middle class clients are stuck waiting for a trial, so don’t even bother looking at alternatives.

Collaborative law was also discussed. This is a concept I wholeheartedly support. But again, there seems to be a stigma that it is only an option for people with above average financial means. I am excited to see the collaborative community taking shape in Alabama and am encouraged by the people I see taking a lead in this area. They will have my full support. Any opportunity for people to work together to resolve divorces is worthwhile. I hope the collaborative model proves to be more widely available than other options I heard discussed.

Mediation is available for anyone who wants to save money, preserve dignity and respect, and quickly and confidentially resolve their dispute – be it a divorce, business dispute, etc. It is not just a high dollar option. I hope that the folks who plan these seminars in the future will consider presenting ways to meet the financial challenges faced by everyday people going through a divorce. I will do my part to keep putting the message out there.

Top Tips for Resolving Disputes

2011-05-31T16:25:00.000-05:00

From an article in Australia but just as relevant to businesses in the U.S. http://www.startupsmart.com.au/management/managing-people/2011-05-30/keeping-the-peace.html?displaypage=start

Top tips for resolving disputes

Write it down: from day one, you need everything documented. That means shareholder agreements, employment conditions and terms and conditions with suppliers and clients. Documentation is not only vital for resolving disputes, it can also nip them in the bud early on.

Have a clear business plan: having a comprehensive business plan can help minimise disputes. If you have a clear vision of what your business is, who you want to deal with and how you will cope with setbacks, it’s less likely that a disagreement will knock you off course.

Keep communication open: don’t cut all ties with a business that has wronged you, as tempting as it may be. “It’s better to get 50% out of them than nothing,” says Porter. “Keep talking in order to get what you can and then never deal with them again.”

Get a third party involved: a court clerk can act as a third party mediator, if needed [NOTE - not typically so in the U.S.]. If not, any independent person agreed by the warring factions can help take the heat out of the situation.

Don’t rush to the lawyers: as tempting as it is to splash out on legal help, it’s not always the best option. Once you start paying legal fees, you feel compelled to recoup this money, potentially pushing your further into an unwinnable case.

Is it worth it? It’s natural to want justice if you’ve been done over by a supplier or client. But it’s vital to weigh up the cost of the dispute versus the cost of pursuing it. If the time and money involved in the latter is higher than the former, consider chalking it up as a bad experience and move on. Just make sure you never deal with them again

Great Resources for Familes Post-Divorce

2011-05-25T13:58:00.002-05:00

Though the title "Cyber Mediation" is a bit misleading - this article about on-line services routinely used by courts in 35 states to assist families post-divorce is very interesting. The sites - http://www.ourfamilywizard.com/ and http://www.sharekids.com/ - offer calendars, message boards for parents and kids, expense logs, important contact info and places to scan and post important documents like report cards. They are secure to the family, their lawyers and the court. I will be checking these sites out and may recommend them in the right cases.

http://www.miamiherald.com/2011/05/25/2231034/cyber-mediation.html

Words of Wisdom

2011-05-19T11:35:00.002-05:00

"Mediation is often thought about as a last option. Yet it offers many more opportunities even for those with limited experience of it and should be used much earlier on to resolve conflict." Good advice in all kinds of disputes.

http://www.peoplemanagement.co.uk/pm/articles/2011/05/hr-urged-to-spread-message-on-mediation.htm

Another Great Example of Peer Mediation in Schools

2011-05-19T11:27:00.000-05:00

I wish all schools had a program like this. We need to encourage our kids to learn how to resolve disputes in an appropriate and productive fashion.

http://www.vcstar.com/news/2011/may/18/middle-schoolers-learn-the-art-of-mediation/

Parent Loses Custody After Fight About Her Breast Cancer

2011-05-10T15:47:00.000-05:00

Story of a difficult case no doubt made more difficult by protracted and contentious litigation.

http://abcnews.go.com/Health/BreastCancerCenter/north-carolina-mom-breast-cancer-loses-custody/story?id=13546870

Re-post: 10 Tips to Ruin Your Divorce Case and Waste as Much Money as Possible!

2011-05-05T09:31:00.000-05:00

This post from the Ohio Family Law Blog was shared with me by a local family law/collaborative law attorney here in Birmingham. Thanks Frances Nolan (frances@thecrittendenfirm.com) for sharing!

http://www.hcmmlaw.com/blog/2011/04/02/10-tips-to-ruin-your-divorce-case-and-waste-as-much-money-as-possible/

10 Tips to Ruin Your Divorce Case and Waste as Much Money as Possible!

Posted on April 2, 2011, by Robert L. Mues

Tip # 1
Organize nothing. Either bring none of your financial records or requested documents to your attorney’s office or court hearing, or bring all your financial records in a paper sack overflowing with miscellaneous papers.
Take no responsibility for any aspect of your case. Procrastinate getting documents together and ask your lawyer to handle even the simplest stuff because you don’t have time and, of course, money is no object.
Tip #2
Call your lawyer repeatedly, ideally several times a day, and ask the same question over and over and over again. Never write down his or her response, and never follow the lawyer’s advice and instructions. Ditto for your therapist.
Tip #3
Make sure you’re blinded by anger and surrounded by friends who agree with you completely. In fact, make sure your closest friends encourage you to get retribution by doing things like slashing your ex’s tires and throwing their possessions on the lawn. Gossip nonstop to anyone who will listen, including strangers.
Refuse to see a therapist or reach out for help. Continue to mine the unresolved relationship issues for tidbits that will inspire you to new levels of anxiety and revenge fantasies.
Tip #4
Hire the fanciest, sharky-est, most expensive lawyer in town even if you have few assets and mostly debts. Be sure to call and complain and make demands every day.
Tip #5
If you owe your lawyer money, pay small sums at a time or nothing at all on your ever-growing bill. Get into terse discussions with your lawyer about the additional work you’d like done while your over-due bill remains unpaid. Make them chase you for their fees and threaten not to pay. You want to be sure that the entire office staff rolls their eyes when they see your file and that your lawyer gets in a bad mood every time he or she thinks about working on your case.
Refuse to pay experts like accountants and appraisers needed for your case until months into the process. Force them to do their reports at the last minute, and be slow to get them required documents and slow to answer their questions.
Tip #6
If your relationship is deteriorating daily, be sure and continue to stay in the same house to save money. As tensions escalate, threaten to call the police, and eventually call 911. Flip a coin to see who gets arrested and spends the night in jail. If you’re especially lucky, you both will.
Tip #7
Refuse to speak to your spouse except through attorneys. Don’t talk settlement until the court forces you to do so. Say things like, “It’s the principal that matters!” particularly if you have a limited amount of money to spend on your divorce.
Refuse to think seriously about settlement proposals and just ask for everything. Maintain that everything is equally important, from the $12 candle holders to your retirement plan.
Tip #8
Demand that your lawyer file as much legal paperwork as possible even if you don’t really understand its purpose or what it is. Keep giving your spouse a hard time and running up his or her legal bills as your top priority. Completely ignore the fact that you’re paying for this work, too.
Become paranoid and hire a private investigator to follow your spouse around even though you live in a state where fault either doesn’t matter at all or influences the settlement very little. Never be satisfied that you know enough about your finances to make a good decision. Just ask for more and more documentation even though you never review what was already provided.
Tip #9
Blame your spouse for everything. Maintain your martyr status by emphasizing all of the terrible things that have happened, while maintaining that you were (and are) completely innocent and oblivious. Revel in your victim status and tell anyone who will listen.
Tip #10
Go to court over even the smallest issue. File as many motions and requests for hearings as possible, and always refuse to settle anything in advance. Spend your time milling around in the court hallway waiting for the judge to get to your case while he or she hears the 15 cases ahead of yours. If you do decide to talk settlement while you’re waiting, be sure and nit-pick every detail, agree to an issue and then change your mind. If you do settle in the hallway, make sure it’s last minute and written up hastily because you want to make sure that there are plenty of misunderstandings about interpretation and what your agreements meant later on so, that you can go back to court again. And again. And again.

Ninth Circuit Addresses Mediation Agreements

2011-04-20T09:52:00.000-05:00

The United States Court of Appeals for the Ninth Circuit issued an opinion a few days ago that supports the enforcement of agreements reached through mediation and upholds confidentiality provisions in private agreements to mediate.

The case involves a claim against Facebook and its founder, Mark Zuckerberg. A competing social media site called ConnectU and its owners sued Facebook, claiming Facebook stole their site. Facebook countersued. After protracted litigation, including extensive discovery, the parties were ordered to mediate the case. The district court did not appoint a mediator. Instead, the parties chose a private mediator and entered into an agreement to mediate. That agreement included a confidentiality agreement, which is common to most mediations, that required all negotiations and statements made during the mediation process to remain confidential, non-discoverable, and inadmissible in any court proceeding.

The mediation was successful, and the parties signed a handwritten term sheet. Included in the term sheet were provisions that Facebook would prepare the final settlement documents and that all claims each party had against the other were released.

The agreement fell apart during negotiations over the final settlement documents. Facebook sought to enforce the mediation agreement, and the district court agreed. The case was appealed to the Ninth Circuit.

In upholding the settlement agreement signed at the mediation, the Ninth Circuit noted that both sides were sophisticated businesses with legal teams and various experts. The Court went on to state:

Parties involved in litigation know that they are locked in combat with an adversary and thus have every reason to be skeptical of each other’s claims and representations. They can use discovery to ferret out a great deal of information before even commencing settlement negotiations. They can further protect themselves by requiring that the adverse party supply the needed information, or provide specific representations and warranties as a condition of signing the settlement agreement. Such parties stand on a very different footing from those who enter into an investment relationship in the open market, where it’s reasonable to presume candor and fair dealing, and access to inside information is often limited. There are also very important policies that favor giving effect to agreements that put an end to the expensive and disruptive process of litigation. (Emphasis added)

The Court went on to state, “An agreement meant to end a dispute between sophisticated parties cannot reasonably be interpreted as leaving open the door to litigation about the settlement negotiation process.” The Court enforced the mediation confidentiality agreement and denied the fraud and securities claims the owners of ConnectU tried to make based upon statements made during the mediation.

This opinion gives an important boost to the mediation process. It confirms that mediation is confidential (here by a confidentiality agreement as opposed to court rule) and that the agreements reached in mediation are enforceable. As the Court concluded, “At some point, litigation must come to an end.”

The case is Facebook v. ConnectU, Inc., case number 08-16745. A copy of the opinion can be found at http://www.ca9.uscourts.gov/datastore/opinions/2011/04/11/08-16745.pdf

New Website Launched

2011-04-15T11:47:00.002-05:00

Please check out our new website at http://www.middlemediation.com/

More Reasons for Mediation in Alabama

2011-04-12T14:48:00.000-05:00

In response to pending budget cuts, Alabama Chief Justice Sue Bell Cobb has announced her authorization for court offices to close one day per week. Additionally, Justice Cobb has notified presiding judges in all of Alabama’s judicial circuits that jury trial weeks for civil lawsuits will be cut in half. Jurors will also be asked to forgo juror and mileage payments.

Taking into consideration the number of new cases of all types filed each year (see my April 4, 2011 post regarding cutbacks facing Jefferson County), parties need to seriously consider alternatives to filing lawsuits and going to trial to resolve disputes. Courthouse closures and fewer weeks for civil jury trials will only add to the delay litigants now face. Mediation provides a faster, less expensive and confidential means to resolve most disputes.

Lawyers and their clients need to weigh all dispute resolution options available to them. Giving the parties the ability to control the resolution, the process, the timing, and the cost, makes mediation the smart choice in these difficult financial times.

More Court Cutbacks Facing Jefferson County

2011-04-04T11:21:00.002-05:00

With a combination of cutbacks mandated by the Administrative Office of Courts and the never-ending battle over Jefferson County’s finances, the court system in Jefferson County is bracing for loss of services and delays that will affect everyone in the County.

The Birmingham News and AL.com have been covering the pending budgetary woes facing the courts and numerous articles and opinion pieces have detailed the grim picture. The Jefferson County Family Court will likely lose court referees who hear over 17,000 cases per year. Bailiffs and security personnel will be cut. Unlike in years past, the courts are not able to look to the County Commission for help – the County is struggling to avoid bankruptcy in light of the sewer debt debacle and the loss (again) of the occupational tax. There is a likelihood of fewer weeks for jury trials and even discussions of closing the courthouses one day per week. Back-ups in the criminal dockets will likely lead to more jail overcrowding. People with civil lawsuits and divorce cases will have to wait even longer than normal for their cases to be reached if they cannot find ways to resolve them outside of the court system.

The Birmingham News reported on Sunday, April 3, that the Jefferson County Commission is seeking limited home rule to allow it to enact tax increases and remove earmarks from current taxes to help meet funding shortfalls. Under the Alabama Constitution, only the legislature can increase taxes. So far, there has been no agreement from the County’s legislative delegation on how to help the County Commission move forward in fixing its funding problems. This leaves the courts looking for new avenues of revenue – including the possibility of increased filing fees. While these budgetary woes grow, the volume of cases our courts are handling continues to be staggering.

The Alabama Administrative Office of Courts reported that last year in Jefferson County (Birmingham and Bessemer) the following NEW cases were filed:

- Circuit Court Criminal – 7,501

- Circuit Court Civil – 9,681

- District Court Criminal – 19,452

- District Court Civil – 11,292

- Small Claims – 16,369

- Domestic Relations (Divorce Courts) 4,938 (3,838 new cases; 1,100 modifications)

- Juvenile Cases – 5,599

- Child support cases (Family Courts) – 5,221

This does not address matters that were already pending in the courts prior to these new filings.

While volunteer mediation programs exist to help the small claims and divorce courts in Birmingham, these programs are limited and can only go so far to help with the backlog of cases in the County. As the gridlock between the County Commission and the Alabama Legislature continues, the courts have begun announcing layoffs. Difficult times require creative solutions – hopefully our elected officials will take the steps necessary to insure the safe and efficient operation of our courts. In the meantime, the lawyers and parties in civil lawsuits and family law cases need to look for avenues other than trials to resolve their cases as early, fairly and efficiently as possible to avoid the delays this budget crisis will bring.

Helping Healing Through Dialogue

2011-04-04T09:55:00.000-05:00

There was an interesting article in the April 3 edition of the Rapid City Journal (South Dakota) about a program called “Restorative Justice” that brings victims of crime and the offenders who committed the crime together to bring closure and, hopefully, healing.

The program is voluntary and is not geared towards settlement of any claims. The process is peace-making. It gives both sides the opportunity to talk about how the crime affected them, their families, etc. It puts a human face on both the victim and the offender. Restorative Justice takes the centuries old approach of putting people together, with the help of a neutral (or from history town or tribal elders/leaders), to talk opening and resolve their differences. The process is completely voluntary, and does not require the victim to forgive the offender – although forgiveness often occurs.

The story in the Journal article involved a car accident caused by a driver who was high. Two adults, one of which who suffered a severe brain injury in the accident, and their seven year old child participated in the Restorative Justice process with the driver who hit them. The meeting had no effect on the sentence imposed on the driver who caused the accident, nor did it affect any civil lawsuit. What the three hour mediation session did bring about was understanding, closure, and peace. The article can be found at http://www.rapidcityjournal.com/news/local/article_c2928576-5d8d-11e0-b5e8-001cc4c03286.html

Dispute Resolution for Our Kids

2011-03-31T15:26:00.000-05:00

Last week, NPR featured a week-long story on steps the City of Chicago has taken to reduce violence among the City’s youth. Many of the ideas the City has employed center around shaping the way young people approach conflicts and how they resolve their disputes. Examples include “CeaseFire” – a community based group that enlists former gang members to mediate street conflicts before they become violent, mentors in the schools to teach young people how to cope and react to conflict without violence, and a “Peace Room” in one local school that meets with kids to help them resolve disputes. The goals of the City’s plan are to create a “Culture of Calm” and to teach kids how to deal with anger and conflict without resorting to violence.

Here in the Birmingham area, a similar program is being piloted in Bessemer. With help from local lawyers, counselors, the Birmingham Volunteer Lawyer Program and the Alternative Dispute Resolution Section of the Birmingham Bar Association, mediators have been meeting with kids to help resolve disputes and prevent fights – and have been having success! This program deserves wide community support and I hope it lays the foundation for similar programs in all of our area schools. We can counter the culture of violence and build a strong foundation in our young people if we take the time to lead by example.

Family Disputes Not Limitied to Divorce

2011-02-16T10:42:00.000-06:00

When I tell people that I am a mediator, and that part of my practice focuses on family law issues, the comments that follow are almost always related to divorce, support, and child custody issues. However, I am quick to point out that “Family Law” covers much broader areas of concern – including such difficult situations as disputes in family owned businesses, issues surrounding estate division, and issues involving elder care.

Elder care and estate division, while not new issues, have been garnering more coverage recently in the news and attention in the public eye. This may be a result of our population aging, or that the baby-boom generation is now providing care for their parents who are living longer than generations before them. Whatever the reason, issues of how to provide care for the elderly - and what effect that care provision may have on the division of assets in a parent or loved one’s estate - are giving rise to more disputes that, unfortunately for the families involved, often end up in court.

A recent Wall Street Journal article profiled a family facing these questions. The article by Anne Tergesen, “A Referee for Family Disputes,” (available for review on line at: http://online.wsj.com/article/SB10001424052748704124504576118051771121770.html) uses an example from a family in California who hired a mediator to help a 60 year old woman and her three siblings divide land owned by their 90 year old mother – land that had been in their family for many years. Polly Osborne, the family member interviewed for the article, stated, “We went from not knowing what to do to agreeing on virtually everything or compromising happily.” Ms. Osborne went on to note that she and her siblings were incorporating the agreement reached in mediation into their own estate planning.

An article in The Buffalo News entitled “Mending Fences, With a Mediator,” authored by Emma Sapong and Sandra G. Boodman (available for review on line at: http://www.buffalonews.com/business/moneysmart/article333623.ece ) demonstrates another situation. The article tells the story of a family fighting in court over the division of their father’s estate. One child had provided more “hands-on” care and took possession of many of the assets after the father’s passing. Three other siblings felt that was unfair. As the family was feuding and incurring expenses to fight amongst themselves, they turned to a mediator. The mediator who helped them resolve the dispute shared this, “They got to express the hurt and they were addressed effectively and they understood where the other was coming from. And by the last session, they focused on what was really important and honored their father by working through a resolution that was respectful and accommodating for all parties.” And, the article pointed out, the family spent less than $2,000.00 on the mediation – making the process not only productive, but also cost effective.

The key to these stories is that these families were able, with the assistance of a mediator, to preserve their relationships, save assets, and avoid courtroom drama that would have taken both a large financial and emotional toll on the families. Other examples of disputes where a mediator can assist a family outside of the traditional divorce spectrum include: helping family members decide how to assist the elderly with managing their financial affairs; dividing up responsibility for the provision of personal care; and even issues surrounding how health care decisions should be made. Mediation is very often the most inexpensive and productive solution facing families struggling with disputes that could otherwise tear the family apart.

Collaborative Law: Will Alabama Join the Trend?

2011-02-11T15:21:00.000-06:00

I recently reviewed a copy of proposed Alabama Senate Bill 18 (SB18), offered by Senator Cam Ward, which will be introduced during the current legislative session. This bill proposes that Alabama adopt the Uniform Collaborative Law Act, providing divorcing couples in Alabama with a different avenue for seeking resolution to their divorce. Senator Ward participated on the drafting committee of the Uniform Collaborative Law Act for the National Conference of Commissioners on Uniform State Laws.

So what is this proposed new avenue? Collaborative Law, as the name suggests, is a process where the parties to a divorce hire lawyers trained in collaborative practice to negotiate a resolution of their divorce. The parties agree that a lawsuit will not be filed and that all exchanges of information will be voluntary and completely transparent. The process limits the role of the Court to enforcing the agreement reached by the parties through negotiation. In order to ensure that the negotiation process is followed, the parties not only agree to voluntary participation, but their lawyers agree that if the process fails, the lawyers will not represent the clients in an adversarial proceeding.

The theory is that if everyone agrees to the process, and knows going in that litigation cannot happen (at least with their collaborative lawyers), the incentive to negotiate and treat each other fairly will lead to an acceptable resolution. The process allows for other “nonparty participants” to be part of the process – financial professionals, counselors, divorce coaches, mediators, etc. – to help the parties and their lawyers shape the agreement. Like traditional mediation, the process is privileged and confidential and the communications made during the process cannot be later introduced in a trial.

Many questions surround the process: Will lawyers who traditionally litigate take to this new role? Will parties abuse the process as a method to conflict lawyers out of cases? Does the practice conform to the rules of ethics governing the practice of law? How much input can a Court have in the approval of the collaborative agreement – i.e., child support guideline compliance, child custody arrangements, etc.? Is the process truly cost effective as compared to traditional litigation or mediation? Does it work?

There are examples from around the country of the collaborative process being effective in the right case. Clearly the process is not for everyone. Of course, litigation is not for everyone either and I firmly believe that family law matters are best resolved by the parties themselves – whether through negotiation by lawyers, mediation (which is by its definition a collaborative process), etc. I also question how different this process really is from mediation. Many commentators have pointed out that lawyers are not required for mediation, whereas they are for collaborative law agreements, and therefore clients get better advice and results. In my own practice, I’ve found that most mediation clients have lawyers and my role is to help guide them to a settlement that meets their needs. And while I have mediated for people who wish to represent themselves, I always recommend they have a lawyer review the agreement we reach through mediation.

There is a very informative article from the Spring 2009 edition of the St. Louis Bar Journal entitled, “Collaborative Law: Good News, Bad News, or No News?” by Yvonne M. Homeyer and Susan L. Amato. In the article, the authors discuss many of the issues surrounding the collaborative law movement. They also provide some statistics about collaborative law from a study complied by the International Academy of Collaborative Professionals. The data provided was from a two year survey of 502 family law cases that were handled through the collaborative process. The data, as reported at page 28 of the Journal, showed:

- 87% of reported cases were successfully resolved, 3% ended in reconciliation, and only 10% were terminated;

- 43% were lawyer-only cases and 56% were interdisciplinary;

- The average cost for both attorneys was $18,755;

- 32% of cases met 3-4 times, 20% of cases met 5-6 times, 20% of cases met 7-9 times, and 10% of cases met 10+ times;

- 48% of cases involved a financial professional;

- 40% of cases involved one or more mental health professionals;

- 72% of cases involved children that were subject to the court’s jurisdiction (i.e., parenting plans needed);

- 76% of all clients were over the age of 40, and 60% were between the ages of 40 and 54;

- 80% of clients had completed at least 4 years of college, and 38% had obtained advanced degrees; and

- 80% of the marital estates were worth $200,000 or more, and 56% of the marital estates were worth $500,000 or more.

Given these statistics, it would seem that the process was clearly successful in certain cases. Whether the success rate reported will translate to a broader spectrum of divorce cases remains to be seen. The article can be found on-line at:

http://www.collaborativepractice.com/lib/Articles/Collaborative%20Law%20-%20Good%20News%20Bad%20News%20or%20No%20News.pdf

I am sure there will be debate regarding SB18 and that the concerns and questions surrounding the Uniform Collaborative Law Act will be addressed before the Alabama legislature. It will be interesting to see how this law, if passed, is implemented and how widely the collaborative law practice will spread in Alabama.

School Peer Mediation Programs

2011-02-04T11:18:00.000-06:00

Nice article today about a school peer mediation program. These programs should be encouraged and supported by our school boards. Any time we can empower people to look at new ways to resolve conflicts - we should take the initiative! http://www.hometownlife.com/article/20110130/NEWS06/101300403/0/NEWS20/Resolving-conflict-Students-learn-how-become-peer-mediators-school?odyssey=nav%7Chead

Mediation a Possible Tort Reform Solution?

2011-02-02T15:30:00.002-06:00

During the State of the Union address, President Obama suggested he is willing to address reform to medical malpractice litigation. This is an important issue to the Republican majority in the House of Representatives, and could be a key to the shape of the healthcare reform package after this Congressional term.

Yesterday, NPR ran a story on their website suggesting mediation could be a solution – and that the more information needs to be made available to the public about this option. The NPR piece can be found at http://www.npr.org/blogs/health/2011/02/01/133399502/first-let-s-blame-the-lawyers. The author, Michelle Andrews, points out that many plaintiffs may not even know the option exists.

Like most disputes, medical malpractice claims can be resolved easily through mediation if all the parties agree to negotiate fairly and in good faith. There are obvious benefits to all the parties – the process is private and confidential; resolution can come about more quickly than through a traditional lawsuit; the process is less costly than litigation; and, if a settlement is reached, the payment is guaranteed to be paid without an appeal.

I agree with Ms. Andrews and the mediator she quotes in her article – an informed patient should suggest mediation even if it is not offered by his or her lawyer. They have nothing to lose but a few hours of their time if the process isn’t successful, and the advantages far outweigh that risk.

Who Knew How Cool Mediators Really Are?

2011-01-24T11:29:00.001-06:00

With the premier last week of “Fairly Legal” on USA Network (Thursday nights at 10/9 Central http://www.usanetwork.com/series/fairlylegal/), mediators are now in the legal drama spotlight! Who knew mediation was cool enough for its own weekly TV show?

While the show certainly dramatizes what mediators do – like Kate Reed (the lead character) stepping in between the gun toting robber and bat wielding store clerk during a hold-up – there are many things “Fairly Legal” depicted that are on point: Kate’s desire to help people; the wide range of disputes that mediators can help resolve; and the fact that getting people to work together is almost always more effective than litigation.

I must take issue, however, with the way the show portrayed the judge’s attitude towards mediation. With obvious venom, he tells the parties to a lawsuit that, “Kate Reed is not a lawyer. She is a mediator.” Of course, her running into court late and throwing her jacket aside as she approaches the bench doesn’t help her cause. The judge - through his tone, saying Kate quit the profession and has nothing but “disdain for the law,” sending what he clearly deems as a less deserving claim to mediation, and limiting her time to resolve the matter - gives the impression that mediation is something below the legal system. In my experience, judges like mediators, are supportive of the ADR process, and encourage litigants to take advantage of the skills mediators bring to the table to help them get their cases resolved (and thus off the court’s docket). I guess exchanges like this help create the “drama” that keeps viewers’ attention.

I am glad the USA Network is showing “Fairly Legal,” and I hope the show is successful. Any publicity that mediation can get is a good thing. The more people see that there are alternatives to the lengthy, expensive and acrimonious litigation process; the more likely they are to ask questions and seek alternatives for resolving their disputes. Educating people to their options, even through a dramatic representation, is never a bad thing.

Mediation Clauses - An Attractive Option

2011-01-24T11:27:00.000-06:00

Over the last several years, the issue of “tort reform” has received significant media attention. This is particularly true in election years, when advocates on both sides of the debate try to shape a platform that too often gets pigeonholed as either “pro business” or “pro consumer.” The debate often surrounds the enforceability of arbitration provisions included as a matter of course in all kinds of contracts. These provisions typically require the parties to agree not to pursue litigation to resolve any disputes that arise regarding the enforcement of the contract. Instead, the parties agree to a binding arbitration process, usually with arbitrators who are familiar with the industry involved in the contract.

The divergence of opinions on binding arbitration clauses is easy to see. Typically, businesses on one side are, rightfully or not, afraid of facing a jury to decide their responsibilities under a contract. On the other side, consumer advocates argue that taking disputes away from a jury and instead handing them to an industry insider to come up with a resolution tilts the playing field unfairly. Millions of dollars have been spent on both sides of this argument, and our courts routinely have to rule on the applicability of these provisions. Not surprisingly, the body of case law that has developed is varied and confusing. Every year, legislatures across the country debate tort reform bills, and most major legislation proposed at the national level attempts to bring some degree of tort reform into the process.

One easy and less controversial option businesses should consider including in their agreements - whether consumer contracts, leases, vendor agreements, employment agreements, etc. – is a mediation clause. Unlike an arbitration provision, the mediation clause gives the parties an opportunity to resolve a dispute without waiving rights or agreeing to a binding process that may appear unfair to one side. Mediation is an attractive option to both sides – providing a fast and cost effective alternative that encourages the participation of all parties to resolving disputes. If the parties agree at the outset that mediation is the proper vehicle for resolving any claims that arise under the contract, they are likely to participate fully and success is highly likely.

Further, a mediation provision can be backed up by a clause stating that if mediation is not successful, then the parties agree to binding arbitration; or that if a lawsuit ensues after mediation, the prevailing party may be entitled to legal fees or costs being paid by the opposing party. However, if everyone agrees to mediation at the outset, follow-up arbitration or cost shifting will very rarely come in to play.

In addition to being easier, faster and less expensive than litigation, mediation is non-adversarial. Decisions rendered by an arbitrator or judge usually determine a “winner” and a “loser.” In mediation the parties seek a “win-win” outcome and retain control of the process. The parties shape the terms of the settlement. We strongly encourage businesses of all types to consider including mediation provisions into their contracts – a better resolution is almost guaranteed.

A Mediation Primer

2011-01-24T11:24:00.000-06:00

Alternative dispute resolution (ADR) is a method of resolving disputes without going to court. It provides a less formal and more expeditious way of reaching a consensus, and is often significantly less expensive than going to trial. Dispute resolution methods include arbitration and mediation. Our firm offers mediation services.

Mediation is one of the most popular alternatives for resolving civil disputes in the United States. Many lawyers and businesses now use mediation on a day-to-day basis to help resolve claims and litigation as quickly and efficiently as possible. Mediation can be a voluntary process between the parties, or ordered by a judge as an alternative to proceeding with a trial.

Unlike arbitration and litigation, mediation is confidential, and the mediator, a neutral third party, does not actually issue a binding decision in the matter. Instead, the mediator facilitates discussion between the two disputing parties and assists them in resolving the dispute by providing a forum to communicate openly. When necessary, the mediator serves as a resource to propose creative solutions based on experience and points of law.

Mediation works for many types of disputes – business and commercial claims, divorce and family disputes, tort claims, contract enforcement, partnership dissolution, estate claims, etc. In reality, any type of dispute can be resolved through mediation if the parties agree to participate. A lawsuit does not have to be filed to take advantage of mediation – and the size of the dispute does not matter. Mediation is a cost effective and efficient way to resolve disputes.

Mediation has many benefits over litigation:

Litigation frequently takes a long time. If the case goes to trial, it can be a year or more before a final verdict is reached. Mediation is usually much faster than litigation as there is no waiting for a court date.

Mediation promotes harmony. Because the parties are working together to reach an agreeable outcome, both parties are more likely to leave satisfied because they have agreed upon the outcome.

Compliance is more likely. Parties who have reached their own agreement through mediation are more likely to comply with the terms.

Mediation is more comprehensive. Court trial verdicts generally only address the legal issues. However, in mediation, other non-legal issues can be addressed and resolved as well.

If the parties cannot resolve their dispute through mediation, they may have to ultimately proceed to arbitration or trial to obtain a resolution.