Monday, February 29, 2016

I'm in Mediation, do I need a Lawyer too?

recent LinkedIn discussion debated the value of consulting a lawyer when participating in mediation.  Here are the pros and cons:

Benefits of Hiring a Lawyer while Participating in Mediation:
  • Legal Advice: A mediator can provide legal information but not legal advice.  That's because legal advice is particular to your individual situation and the mediator as a neutral shouldn't be providing advice to either individual.  
  • A Private Sounding Board: Sometimes people are afraid to raise certain issues in mediation because they're not sure if it's relevant or how the other person will react.  A lawyer can help you decide what issues you should raise and the best way to raise them.
  • Education about the Law:  Mediation is a negotiation, and if you don't have a lawyer with you then you are negotiating for yourself.  One of the best ways to do well in a negotiation is to be prepared.  While the mediator can provide legal information, you may not even know the right questions to ask unless you have first met with a lawyer and prepared for your meetings.
  • Negotiation Coaching:  Even the best negotiators can have difficulty negotiating on their own behalf.  It's not only difficult to be objective about your own situation, but you may have a relationship with the other person that makes it difficult to negotiate with them.  A lawyer can help you prepare for those challenges and provide you advice on the best way to approach issues.
  • Another Perspective:  Every professional has different levels of experience, and your attorney may think of an option or solution that you, the other person and the mediator all missed.

Risks of Hiring a Lawyer while Participating in Mediation:
  • One Step Forward, Two Steps Back: If you reach agreements in a mediation meeting and then your lawyer gives you advice that changes your mind that could destroy progress you made in mediation.  
  • Cost: Working with a lawyer in addition to a mediator increases the cost of the process.
  • Polarizing Advocacy: If your lawyer has strong opinions about what is best for you they may criticize the mediation process, especially if you are reaching agreements that might be less than what the lawyer believes you could get in court.
  • Another Perspective:  While this can also be a benefit, sometimes there are too many cooks in the kitchen to get things done.

Minimizing the Risks:

Despite these risks, at Skylark Law & Mediation PC, we always recommend that our mediation clients meet with their own lawyers during the mediation process.  Even though there are risks, all of these risks can be minimized or eliminated if you know about them ahead of time.  
  • One Step Forward, Two Steps Back: You can minimize this risk by working with a lawyer from the beginning of your case and getting legal information and advice before you reach agreements.  Then you will never feel uninformed. 
  • Cost: The cost can be minimized by using your lawyer efficiently.  Ultimately being prepared for mediation meetings may reduce how many mediator meetings you need.   Also, the result of being uninformed or misinformed can often be more costly than what you will spend for timely advice.
  • Polarizing Advocacy: While your individual lawyer is your advocate, you control the ultimate decision.  Make sure that you work with a "mediation-friendly" lawyer who understands the reasons you chose mediation and respects your right to make final decisions in the case.  We advise people to hire lawyers who are also trained in mediation and collaborative law.
  • Another Perspective:  You can minimize this risk by not trying to repeat every conversation with your lawyer and your mediator.  Use each for their particular expertise.  
To ensure that you hire an attorney who will help you minimize the risks, read our previous article: What Questions Should You Ask Before Hiring an Attorney: a Mediator's Perspective.

Friday, February 26, 2016

What does Your Favorite Break-Up Song have in common with Mediation?

A good break-up song doesn't make everything okay, but it can make a break-up seem more bearable. Music allows us to express feelings of hurt or anger rather than hide them, and healing depends on that healthy expression.  Mediation also encourages the healthy and constructive expression of strong emotions in a safe environment.

The mediation process allows each individual to share what feels fair to them, instead of just the information that is admissible in the court process.  By allowing people to find their own solutions, mediation is as freeing as rolling down the windows in your car, turning up the radio and singing along with your favorite break-up song.

Here are just a few of our favorite break-up songs from the mediators and staff at Skylark Law & Mediation, P.C. (warning some videos may have NSFW language):

Don't like these or have a different favorite?  Share your favorite break-up song in the comments section below.

Click here to learn more about mediation or schedule a consultation with a mediator.

Thursday, February 25, 2016

Is Fair a Dirty Word in Divorce?

I recently read a post entitled "Why 'Fair' is the F-Word in Divorce Negotiations" by Shawn Weber, which posits that fairness, as a subjective concept, bogs people down and can keep them from reaching agreements.  I agree with Mr. Weber that the focus of divorce negotiation should be "on making a decision that can end the conflict so that a person can move on, which in turn will bring peace."   However, I also believe that sometimes understanding the concept of "what is fair" to a person is integral to a couple finding peace.

Mr. Weber rightly points out that asking the question "what is fair" will often result in two answers that do not intersect.  Consider, for example, a hypothetical couple fighting over whether the children are ready to meet the mother's new boyfriend.  The mother may think it's unfair for her not to have the choice of when is the right time to make that introduction, and the father may think it's unfair if he doesn't have a say since they are his children too.  If we only ask "what is fair" this may seem like an intractable disagreement.

What happens, though, when we ask one simple follow up question, "why does that feel fair to you?" An open-ended "why" question gives people a chance to explain themselves and reveals a significant amount of information below the surface:

We want clients to be reasonable about the fact that a potential court outcome may not feel "fair" and therefore they may not have many options.  But if we throw out the concepts of "fair" and "unfair" altogether, then the benchmark for deciding resolution still has to come from somewhere.  If the only measuring stick for resolution is the law, then people are just substituting what lawyers and judges think is fair for their own judgment.

When people choose an out-of-court settlement option, like mediation or collaborative negotiation, one of the advantages is that they don't have to accept the limitations of the law.  For some that freedom is too broad, because it means they can't rely on the legal benchmark for what is a reasonable resolution.  But if we don't make "fair" a dirty word, and instead encourage people to explore why something feels fair to them, then they are more likely to find something else on the way to resolution: understanding.

Ultimately, I believe if we treat "fair" as a dirty word then we are limiting our clients to compromise rather than helping them reach agreements through understanding.  Even if the resolution is the same, approaching a solution from a point of understanding instead of compromise is the difference between a feeling of "gain" versus one of "loss."  In cases where the parties may have an ongoing relationship, such as co-parenting after divorce, this could be the difference between resolving conflict and postponing it.

Visit our website to learn more about conflict resolution options, and if you want to know more about The Power of Questions to elicit understanding check out this upcoming training from MCLC.


Wednesday, February 24, 2016

Who has More Power in a Divorce: You or a Judge?

In most cases, an experienced divorce attorney can tell you after a one hour consultation the range of what you can expect to happen if you go to court.  Good attorneys will give you reasonable expectations of how the court process can go and what it will cost, but even the best attorneys sometimes forget that "what a court can do" and "what a family should do" are not always the same thing.

Unfortunately, many people end up feeling that the resolutions crafted by Judges are unfair, even when they "won" the case.  The reason court solutions often feel unfair is because they are limited to the statutes and case law.  Judge's don't have unlimited discretion (or time) to find the best solution for a family.  They have to find the solution that is least offensive within the boundaries of the law.

When people choose an out-of-court settlement option, like mediation or collaborative negotiation, one of the advantages is that they don't have to accept the limitations of court crafted solutions.  I often draw the below diagram for my mediation clients to help illustrate this point:

*Not to scale.  The pink circle should be much, much smaller.
The blue circle contains all the solutions that a Judge can approve.  You can't go outside the blue circle because there are still limitations on what the Judge can approve, for example a Judge can't approve an agreement that violates tax laws.  However, the world of solutions that exist in the blue circle is still much, much larger than the solutions that a Judge must choose from if you disagree (the pink circle).

While you might reach agreements that a Judge would have ordered anyway, wouldn't you want the opportunity to consider more possibilities and not limit yourself?  Mediation, Collaborative Law and other out-of-court settlement processes offer you that choice, and when you realize all the possibilities, court doesn't seem like much of a choice at all.

Monday, February 22, 2016

Reforming Alimony Reform - A Bill to Fix Chin v. Merriot

On Friday, February 19, 2016, Massachusetts Representative John Fernandes filed House Bill HD4546 to override the ruling of the Massachusetts Supreme Judicial Court in Chin v. Merriot, a case which marked the return of lifetime alimony in Massachusetts.

Fox 25 News reported on the filing, and spoke with Steve Hitner, who was part of the Task Force that drafted the bill.  Steve, and many others (including the authors of this blog), believed the Alimony Reform Act of 2011 clearly allowed the modification of merged alimony orders in instances of retirement age or cohabitation.  However, the SJC read the Act to only allow application of these rules for post March 1, 2012 orders.  Unless the legislature acts, this means that there are different rules for pre-2012 and post-2012 alimony cases.

HD 4546 would clarify the Act, by allowing modification of pre-2012 orders for cohabitation or for the payor reaching full social security retirement age.  If you want to support this bill follow Steve's updates regarding next steps, including a possible upcoming public hearing.

Click here to learn more about The Alimony Reform Act of 2011.

Friday, February 12, 2016

Bringing Peace to E-mail

About six months ago, I changed my e-mail sign-off.  This may seem like a trivial thing that many people wouldn't notice, but sometimes the small details about how you manage your practice have a big impact.

After reading an article entitled 57 Ways to Sign Off an Email, I decided to change my e-mail sign-off from the formal "very truly yours."  "Very truly yours" was an e-mail sign-off I never thought about until I read this article.  It was just part of my signature on letters, and therefore e-mails as well.  It came from a partner at the first firm I worked at, and I never thought about what it said about me or my brand.  It didn't mean that I was "true" or "yours".  It just meant "this is the end of the e-mail."

When I decided to make the e-mail sign-off my own, it went from something trivial to something I obsessed about.  How could I convey "who am I" in one to three words at the end of an e-mail?  I worried about being too informal or too formal.  I worried about whether one sign-off could fit clients, vendors, and colleagues.  But when I focused on what my firm brand was about, only one option seemed right.

Ultimately, I decided to end all of my e-mails with: Peace ☮, and it changed more than just my e-mails.

As as a mediator and attorney I have cases where I am in an advocate role and cases where I am in a neutral role.  In either role, my goal is always to help bring peace to people's lives.  When writing an e-mail in an advocacy role, however, it can be very tempting to be forceful or aggressive.  I wrote about this temptation in a previous post: Are Divorce Lawyers regularly violating the Civility Guidelines?  But now, if I draft an e-mail, when I get to the end I ask myself, every time, "does this e-mail really promote Peace ☮?"  If the answer is no and my sign-off doesn't fit the e-mail content, then is it really an e-mail I want to send?

If the purpose of every communication I have is really to bring peace to my clients, then I should be asking myself that question at the end of every e-mail.  Making what initially seemed like a small change, became an every day reminder of who I want to be as an attorney and a mediator.

What is your e-mail sign-off and what does it say about you?  Please share your sign-off or your opinion of my new sign-off in the comments below.

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