Georgia Family Law Blog

7 Roadblocks to Successful Mediation

Mediation is a very popular and widespread process used to resolve disputes, especially in divorce cases. In many places . . ., mediation is virtually a requirement before a case can go to trial. The reason is obvious — it works! My observation is that mediated cases settle about 90% of the time, or more.

For mediation to be successful, it takes a good, well-trained mediator. In Texas [and here in Georgia], we normally have attorneys present and participating with the parties in the mediation; some other states often have the parties attend mediation without attorneys. Both systems obviously can be effective. Success, however, is not guaranteed and should not be taken for granted. Here are seven problems that can prevent a successful outcome from mediation.

1. Lack of preparation by one or both sides. The parties need to have all the information and records at hand so they can make intelligent decisions. It’s also very helpful for both parties to have thought through their personal goals, needs and interests so they know what they should try to accomplish in the negotiations.

2. Unrealistic expectations. If one party has goals or ideas that are very unrealistic, agreement would be unlikely. It is normal for the parties to disagree about things, but sometimes there is no way to accomplish what one of the parties wants. An attorney should work with the client to help them reasonably define and describe what they want to end up with. If a party demands 80% of all the assets because the spouse has had an affair or drank too much or abandoned the family, usually the case is very unlikely to settle. As the Rolling Stones said, ‘You can’t always get what you want.’ The parties need to be realistic and keep in mind the costs of not settling.

3. Lack of commitment by a party. If one party or both don’t take the process seriously or don’t want to settle, there won’t be an agreement. Both parties need to see and feel the advantages to themselves from a settlement. Without commitment, the parties won’t stay in the compromise mode long enough to settle. They can easily become discouraged if there is not a quick, painless settlement.

4. Inability of a party to make a decision. I have seen situations where we have waited two hours or more for the other party to respond to a changed settlement proposal that wasn’t particularly complex. Some people don’t handle stress well and some don’t like to make quick decisions. The parties should learn in advance how the mediation process works and how decisions are made. They need to learn to approach the process as if it were an impersonal business deal. Participants should expect to face choices and they need to understand that they probably won’t be happy with everything that happens at mediation. Even highly educated people used to making tough decisions affecting others sometimes have hard times making decisions in mediation.

5. Positional bargaining. People who begin negotiations without clearly defining their goals and needs will usually begin by staking out a territory or percentage as a starting point and leave themselves room to compromise. Sometimes, both parties figure out a middle ground for a target and figuratively both take ten paces backward before negotiating. Some people want a percentage of the property, regardless of what their needs are. For example, many husbands will insist on a 50-50 split and some wives will choose a starting point of 70% or 65% of the assets, when it may be that certain assets would be preferable for one party, such as cash in the bank (with no tax consequences) versus funds in a retirement plan (with penalties for early withdrawal plus income taxes for the amount paid). Positional bargaining can make for easier negotiations, but the results may not be very helpful to either party.

6. A mentally ill participant. There are, of course, varying degrees of impairment from mental illnesses. Medication and counseling are often helpful for a patient. Sometimes having a close family member or friend present during the mediation can help the party be in a frame of mind to negotiate effectively. Without extra support and/or meds, a mentally ill party can scuttle the effort to settle.

7. A mediator perceived as biased for one side. Unless both parties have confidence in the quality and neutrality of the mediator, it is unlikely that the mediation will be successful. Some parties don’t trust a mediator who is a male or one who is a female. The location of the mediation or the mediator’s office may produce distrust by a party. If the mediator is seen as a friend of the other attorney or party, the mediator will probably not be acceptable. Attorneys should make sure that the mediator is someone who will be acceptable to both parties.

There are other potential pitfalls for mediation, but these are some of the major ones. If you are planning to go to mediation, you should work diligently in advance to be prepared, committed and ready to decide. Keep an open mind throughout the process so you have the best chance for success.

Source for Post Divorce and Family Law in Tarrant County and Divorce Help Network

Divorce Wars Hazardous to Financial Health

In its February 2008 issue, Consumer Reports lists and discusses "12 Money Blunders That Could Cost You $1 Million." Coming in at number 3 is: "Launching a divorce war":

3. Launching a divorce war (CR estimated cost: $49,000 to $188,000)

Divorce may be unavoidable sometimes, but spouses can take steps to reduce the
financial impact. Hiring lawyers can ensure everyone's interests are
represented, but the more issues spouses want to slug out, the more billable
hours attorneys can charge. CR's report found that a low-conflict divorce can
generally be mediated for about 75 percent less than using attorneys and going
to trial.

-- CR's Advice:  Because the intensity of the conflict is a major driver of
legal costs, work more toward diplomacy than war, which will increase the
viability of the low-cost mediation option. Try hardest to get along on
custody, often a hot-button issue. Property settlement is a Solomon-like 50-50
split in most states.

SOURCE FOR POST: Reuters.com

Updated list of Mediation and ADR Programs in Georgia

Fellow blogger Christopher K. Annunziata of CKA Mediation and Arbitration Services very kindly notified me today of an updated list of Georgia mediation and other alternative dispute resolution programs, found here and also listed below:

Georgia Court-Connected ADR Programs

The following is a list of mediation programs in the Courts of the State of Georgia:

SOURCE: State of Georgia

UPDATE (October 5, 2007): See my post here for an updated list.

Tips for Success at Your Settlement Conference

Many cases can get settled simply by getting the parties together to talk.  This type of informal meeting is called a "settlement conference."  The following steps can help you prepare for a settlement conference and improve the chances of its success:

1. Identify the issues in your case.
2. Understand how the law affects your case.
3. Know the estimated costs of trial.
4. Remain open to unique opportunities.
5. Keep a few secrets.   
6. Be determined.   
7. Be ready for a little give and take.
8. Be patient.
9. Get it in writing.

You can read much more about each of these steps by clicking here.

Source:  "Settlement Conference Success" by Helene Taylor, published at The Modern Woman's Divorce Guide.
SOURCE FOR POST: South Carolina Family Law Blog

Divorce and Out-of-Court Proceedings: Alternative Dispute Resolution

A divorce can be resolved through informal negotiations between the divorcing spouses (usually with attorneys), through use of out-of-court alternative dispute resolution proceedings that tend to facilitate a voluntary settlement, or in the traditional court setting -- when a judge or jury makes final decisions. The vast majority of divorces are resolved before issues must go before a judge or jury, many through the use of alternative dispute resolution processes such as mediation, collaborative family law, and arbitration.

Is Alternative Dispute Resolution Right for You?

If you and your spouse decide to proceed with divorce, one option is alternative dispute resolution (ADR). ADR may prove to be a beneficial tool in resolving your divorce and related issues, depending on factors such as 1) the degree to which you and your spouse are in dispute on key issues like child custody and property division, and 2) your willingness to work together to resolve those issues.

ADR processes tend to be less adversarial and more casual than the traditional court setting, and may encourage and facilitate early settlement. With mediation and collaborative family law, you and your spouse (along with your attorneys) have an opportunity to play an active role in resolving key decisions related to the divorce, instead of having a third party (judge or jury) make those decisions. Rarely used in divorce cases, arbitration is a more structured ADR option, in which a neutral third-party makes decisions after hearing both spouses' evidence and arguments. The arbitrator's decision in a divorce case is not necessarily final, and the parties may still be able to resolve key issues before a court at a later date.   

SOURCE: FindLaw

Mediation in the State of Georgia

The State of Georgia is quickly becoming one of the most mediation-friendly states in the U.S. Currently, there are 96 counties in Georgia that utilize some type of publicly sponsored Alternative Dispute Resolution program. The objectives of these programs include such subjects as 'Juvenile Court,' 'Landlord – Tenant Negotiations,' 'Domestic Mediation,' etc. In fact, many Georgia counties now require a "good faith" effort by divorcing couples to come to an agreement through the process of mediation. This does not mean that the couples are forced to agree. They are simply asked to attempt to find their own solution before the case is presented to a judge.

When looking at the wide variety of contexts where mediation is being utilized, Divorce Mediation stands out as one of the fastest growing fields. The courts have decided to place an emphasis on providing couples the opportunity to craft their own agreement, rather than asking judges to deduce acceptable terms. With mediation, sensitive and complex issues can be solved by the parties who are intimately affected by the decisions that will be reached. This can be especially helpful with subjects such as child support, visitation schedules, personal property dispersal, and alimony. Conventional wisdom holds that individuals who were part of crafting their own agreement are more likely to follow its conditions.

In Georgia, there are stringent educational requirements to become registered as a mediator with the Georgia Office of Dispute Resolution. To be registered as a Domestic Mediator, applicants must have the following: a B.A. or B.S., prior General/Civil Mediation training, the successful completion of an approved Domestic Mediation training program, and practical experience observing and co-mediating actual disputes. Furthermore, it has also become highly recommended that divorce mediators participate in an in-depth Domestic Violence educational workshop.

There are two avenues to mediation in Georgia. The first, 'Private Mediation,' involves the hiring of a mediator before any conflict has been filed with the courts. Individuals with or without legal representation will often try to find agreement through the use of a mediator before the situation progresses into litigation. Any agreement created during this process becomes legally binding with the parties' signatures. If the agreement is broken, the document can be utilized as evidence of a broken contract in civil court.

The second avenue in Georgia is called 'Court-Referred Mediation.' This process is implemented after the conflict has entered the court system. Alternative Dispute Resolution Offices have been established in many counties throughout Georgia to help parties resolve their issues before the case is heard. Depending on the situation, parties may or may not have legal representation. As with 'Private Mediation,' agreements reached become legally binding and case dismissals are often contingent upon the satisfaction of the terms of the contract.

As the civil court system continues to be over-taxed by the number of cases that are filed each year, the option of mediation has become increasingly popular. This has been particularly evident in the realm of divorce. Comparatively speaking, the limited time and costs associated with using a mediator are far more attractive than the financial burdens and loss of decision-making linked to going to trial.

SOURCE: DivorceNet

Mediating Separation Agreements

The difference between separating and divorcing seems obvious, one allows for reconciliation while the other is a final solution approved by the courts. However, more couples are viewing separation and divorce as two stages of one path, rather than two distinct options. Couples will choose to mediate a separation agreement first, and then use this agreement to file for divorce if the couple cannot resolve their issues.

Choosing to view the mediation of a separation agreement as a stage in a process provides several benefits. Firstly, it allows ground rules for the separation to be established and written down. Issues such as living arrangements, child support, visitation schedules, bill payments and spousal support can be negotiated for the time a couple spends apart. These are very sensitive areas that are often difficult for people embroiled in conflict to resolve without experienced guidance and facilitation.

Secondly, similar to a divorce agreement, a separation agreement can also be negotiated without the use of attorneys. The average time spent on mediating a separation agreement pro se (without representation) is only a few hours. This can significantly reduce the costs associated with an already difficult process. In addition, most mediators will include a clause in the agreement that allows both parties ten days to have the document reviewed by an attorney and voided if their counsel so advises.

Finally, if after a separation period the couple is still unable to reconcile, the separation agreement can be used as the basis of a divorce agreement. Many of the ‘hot-button’ issues will have already been decided, helping to streamline the divorce negotiations while saving time and money. In fact, some couples decide to settle on all of the issues of the marriage during separation mediations. This allows the couple to simply file for divorce if the time apart does not result in reconciliation.

Conflict and communication lapses are two of the biggest hurdles encountered by couples taking time apart. Mediating separation agreements allows for difficult issues to be discussed and resolved in a controlled environment. Experienced guidance offers couples not only solutions to current issues, but can help create agreements to avoid differences that may not yet have arisen.

SOURCE: DivorceNet

When You Can Keep Lawyers Out of Divorce -- And When You Need One

When getting divorced without a lawyer makes sense -- and when you should hire one.

You probably know of people who suffered the torments of hell going through divorce, and you also probably know people who pulled it off without much fuss. Why are some divorces sensible and others catastrophic?

The answer can depend, to a surprising extent, on just one factor: how much you rely on lawyers and courts to resolve troublesome issues. The less you use the court, the less cost and heartache, and, in many cases, the better quality of the final result. But how do you avoid courts and lawyers?

Make Decisions by Yourselves

In theory, at least, it's simple: You do best if you and your spouse work out thorny issues together, with help from a neutral third person, such as a mediator, if you need it. You don't let lawyers haggle over such vital matters as how your children will be raised, what happens to the family home, and how your property will be divided. If you and your spouse can work these issues out yourselves -- and many, if not most, couples can -- you will save yourselves time, money, and anguish. More important, you will spare your children the ugly spectacle of extended parental fights, helping them come through the divorce as undamaged as possible.

If you are able to resolve the big questions of children, money, and property, you then just need to ask the court, in writing, to grant a divorce. In many states, you don't even have to appear in court. Many courts now make it relatively easy for people to handle an uncontested divorce without a lawyer.

Keep Lawyers From Fanning the Flames

When you're emotionally distraught or angry, turning all the details and hassle of a divorce over to a lawyer may seem like a perfect solution. Unfortunately, it can turn out to be a deal with the devil. Most observers -- and people who have been through an acrimonious divorce -- agree that lawyers frequently make things worse, not better.

This happens because lawyers operate under a prime directive: the zealous pursuit of their client's interests. One lawyer can't fully represent both divorcing spouses, because each spouse's best interests are different. So, when one spouse brings a lawyer into a divorce, the other usually does likewise. There may even be a third lawyer to represent the children if there is a custody dispute. And then it can get ugly. When two or more lawyers are fighting for their clients' interests, the battle can go on and on, intensifying in passion, until the clients run out of money and limp to the settlement table.

Worse, if there are children, the fight depletes not only your pocketbook but also your children's sense of security and self-esteem. Once the legal fight is over, trying to establish a normal ongoing parenting relationship between both parents and the children can be very difficult.

How to Keep Lawyers Civil

If you and your spouse do hire lawyers, you can stop your lawyer from engaging in lengthy, expensive arguments with your spouse's attorney. Explain that you believe a combative approach does not suit your or your children's needs. Most lawyers would rather have a satisfied client than feed their ego by fighting the other side's attorney.

How Collaborative Law Works

Some family lawyers are trying a new method called "collaborative law," in which the clients and lawyers agree that they will not go to court but will share information voluntarily and work cooperatively toward a settlement. Collaborative lawyers will take cases only where the other spouse has also hired a collaborative lawyer, and the lawyers sign an agreement that, if the case can't be settled, the parties have to hire another lawyer to do the litigation. This removes the lawyers' financial incentive to go to court and encourages everyone to settle earlier.

When to Hire a Lawyer

It makes a lot of sense to hire a lawyer if there is a real problem with abuse -- spousal, child, sexual, or substance. In that situation, a lawyer can help you get the arrangement you need to protect yourself and your children.

It can also make sense to hire a lawyer if your spouse is being dishonest or vindictive and you just can't cope with it. In that case, you may need someone to protect your interests.

It's also prudent to hire a lawyer if your spouse has an attorney. This is especially true if you have children or are facing complicated financial issues. It could be difficult and emotionally intimidating to go head to head with a seasoned pro.

If you can't afford a lawyer, consider calling your local legal aid office. If you qualify financially, a lawyer will at a minimum discuss the legal aspects of your case with you and may continue to answer questions on an ongoing basis during your proceedings while you represent yourself. Ask whether the legal aid office has a pro bono program. The office may have a list of private attorneys that are willing to take on cases referred by legal aid, at little or no cost.

If you don't qualify for legal services or pro bono help, you'll have to shop around for someone to represent you.

If You Fear Violence

If you fear that your spouse might harm you or your children or abscond with your property, take action immediately. Move to a safe place, and, if necessary, get a temporary restraining order to keep the spouse away. It's very important that you also get a temporary order for custody of your children, so that you're not accused of kidnapping. If you need money, you have the right to use your joint accounts. Take the amount of money you realistically need plus some extra for emergencies (but try not to take more than half of what's there unless you absolutely have to), and immediately file an action in court for support.

How Divorce Mediation Can Help

Mediators help you and your spouse get over the emotional barriers to negotiation and fashion a sensible divorce agreement that meets the both of your needs. Unlike lawyers, mediators work with both spouses at the same time. They don't represent the individual spouses' interests, the way a lawyer does. Instead, mediators facilitate a negotiation between the spouses that in most cases results in an agreement satisfactory to both sides.

SOURCE: Nolo

Understanding Divorce Mediation

The following was posted on Relationships blog by Daphne Succes:

When it comes to divorce, many couples assume that they will have to go through a lengthy legal process that is both expensive and emotionally devastating. Divorce mediation, which is an informal legal process, is one alternate to an otherwise costly trial. As the name implies, mediation is the process where a neutral third-party presides over the agreement of a divorce as made between a husband and wife.

Not only is divorce mediation a faster process than a trial case, it can also be much less expensive. Whereas a trial procedure can last for months or even years, a divorce settled through mediation can often conclude in much less time providing both parties are cooperative during the discovery process and are flexible as to when mediation meetings can be held. Although informal, the mediation process is very much a legal process and must be approached accordingly. Because the mediator is impartial, both the husband and wife are often encouraged to seek the independent advice of a divorce attorney. Whether it's simply to be present during the mediation process or to offer recommendations and help to make their client aware of his/her rights, a divorce lawyer may help the mediation process to move forward in a timely manner.

So, just what makes divorce mediation more affordable than a court trial? For one thing, the attorney fees will be less expensive because of less research, time and not having to record depositions. The more time your attorney spends working on a case and the more research he/she is required to do, the higher the attorney fees will be. Regardless of the approach, a divorce is an expensive process. The good news is, however, that there are ways to keep the costs at a minimum and one of those ways is through divorce mediation.

In order to effectively complete a divorce through mediation, both parties must be willing to attend regular appointments with the mediator and should also be cooperative throughout the discovery process and questioning. Topics that require agreement include, among others, alimony, the division of assets and child custody. Once both parties agree to the terms of their divorce mediation, a court date will be scheduled for the final hearing.

The information contained in this article is designed to be used for reference purposes only. It should not be used as, in place of or in conjunction with professional legal advice regarding divorce mediation and/or the divorce process. If you are considering a divorce, consult with a professional attorney in your area for further information.

SOURCE: Relationships