Kane Law & Divorce Mediation Services

This week’s issue of the British magazine, The Week, reports that it’s been a bad week for divorce lawyers.  The editors point to a survey by the American Academy of Matrimonial Lawyers.  The survey’s finding is that the recession is making it too expensive for many couples to split up.  “Couples are ‘toughing it out,’ the group said, until the recovery.”[1]

Admittedly, if couples go the traditional route of each hiring a lawyer to represent each spouse’s interests in court, the costs can be high. It’s estimated that the average litigated divorce costs each party $18,000 while highly contentious divorces and custody battles can cost $40,000 or more per side.

Adding insult to injury, there’s only so much a judge is authorized to do in dividing property and awarding spousal maintenance.  For example, a judge will not order, over a party’s objection, that husband and wife continue to own the family home after the divorce is final as partners. A judge’s duty is to divide the community property.  If there is not enough other property to compensate the other party for his or her fair share of the house equity, the house must be sold to provide the cash for both parties. And divorcing couples are loathe to sell the family home in a down real estate market.

Fortunately, there is a pathway to avoiding economic ruin without “toughing out” a marriage that is over for all intents and purposes.  In Early-Stage mediation, a seasoned mediator can take couples through all the issues that need to be decided in order to come to agreement on a parenting plan, division of property, and spousal maintenance.  The mediator writes up the agreement at the end of the process.

Husband and wife own the content of the mediation while the mediator is in charge of the process.  Typically, 3-5 two-hour sessions will be needed to cover all the bases and reach agreement on all issues, including a parenting plan, child support, college education, retirement accounts, real estate, stock transfers, taxes, air miles and the family pet.

Creative alternatives to the sale of the family home and liquidation of stocks in a down market are part and parcel to divorce mediations in times of recession.  To avoid this scenario, spouses may opt for joint ownership of real estate for a period of time after the divorce with stipulations as to who pays the mortgage in the meantime, who lives in the house, and when the house will be sold or refinanced.  Similarly, liquidation of securities can be avoided by splitting stocks in-kind.

So, for those couples who want to stay out of court and be in charge of the content of their separation agreement, there is a viable option to toughing it out together under the same roof until economic conditions improve.  To see whether you and your spouse might be good candidates for divorce mediation, please refer to my blog on High End Goals in Compassionate Divorces–Lessons from Big Tim’s Death (June 16, 2008) for self-screening.  Although I discuss this topic in the context of collaborative law as distinguished from mediation, the tests are the same.

[1] The Week, Vol. 9, Issue 396 (January 23, 2009) at p. 6.

I suspect that the economic meltdown that began in earnest in mid-September is a factor in causing many couples to “hunker down” instead of starting divorce mediation or a collaborative divorce until their balance sheets will improve and their homes will regain value and liquidity.

 My anecdotal evidence is a sudden fall-off in the number of inquiries from spouses interested in mediation and non-litigation divorce options about that time as well as similar observations reported by my colleagues “over coffee” and at various conferences.  I can also reflect on my personal reluctance to open up my retirement statements when the only unknown is how far my mutual funds have fallen.

 For many people, their house is their principal asset. House equity provides the grease to overcome the truism that it’s more expensive to live under two roofs than one.  If the house can’t be sold at a price that provides the wherewithal to buy replacement housing, that’s an impediment to starting a divorce.  Add in the reported tightening up of lending requirements, the decision to delay may appear to be the best choice for many couples.

 I believe these fears are largely unfounded in light of the Seattle housing experience and reduction of mortgage rates expected from the Federal Reserve’s decision to lower a prime lending rate almost to 0%.  Unlike many areas of the U.S., Seattle and Bellevue area housing prices have fallen only modestly, reflecting solid employment and continued demand for housing. Among major metro areas, Seattle’s real estate was rated the best in the nation as a prospective investment according to a late October 2008 report by Price WaterhouseCoopers and the Urban Land Institute.  

 And there are alternatives to selling the family home that can be explored with the help of a skilled divorce mediator or collaborative lawyer.  One scenario is for the spouses to continue to own the home after the divorce as partners until sale is triggered by an event (for example, the youngest child reaches college age) or a date (for example, 5 years). The spouse staying in the house pays all or part of the mortgage and both share fairly in the proceeds of sale. 

 As for losses in retirement accounts, typically securities and mutual funds do not have to be sold when spouses are divorced.  Instead, they can be split “in kind” so both spouses can benefit from a rebound in stock and mutual fund prices.  So while the net assets of the couple may be less than they were a year ago, that is no reason to put off implementing a decision to divorce.  Indeed, a rebound in the financial markets may occur during the time that divorce mediation typically takes to achieve final agreements on a parenting plan, property settlement, and spousal support.  And the date the couple’s property is to be valued is a mutual decision by both spouses in mediation and the collaborative divorce process. 

 So the recession is no reason to stay under one roof in unhappy circumstances or put two lives “on hold” for an undetermined time.  Far better to start the process, identify the issues to be resolved, and move toward solutions than to bury “heads in the sand” based on unfounded assumptions.

People often ask me if divorces are seasonal as if calls for my services as a mediator wax and wane with the moon.  The answer is a qualified “yes.” My take is that couples contemplating divorce would rather put it off during family orientated times of the year such as summer and the Holiday Season.

January and September, on the other hand, seem to bring with them a resolve that now is the time to face up to the implications of living apart and raising children in two households.  They are “get down to business” times of the year when many people decide to divorce.

What about going through a divorce in bad and uncertain economic times such as we’ve encountered during the past month or so?  Do couples defer divorces during economic downturns so they don’t have to face decreased valuations of houses and 401K retirement plans? Most people I know with money in the stock market don’t even open their statements when they know the news will be bad.  For those couples contemplating divorce, the prospect of splitting up a smaller pie of assets may lead to avoidance,  “gutting it out” even though the marriage is over for all intents and purposes.

That may be a mistake if there is any truth to Billy Joel’s “Scenes from an Italian Restaurant.” “They started to fight when the money got tight, and they just didn’t count the tears.”[1]

For those who have tried marriage counseling unsuccessfully and want to move on with their lives while preserving dignity and important relationships, a better solution is to consider early stage divorce mediation.

Most of my divorce mediations are conducted in a conference room with only the divorcing couples present.  Couples do a lot of the information gathering on assets, debts, and post-divorce budgets. If they need outside help such as financial experts to value businesses or lawyers to coach on legal issues, couples access this help between sessions and bring the information back to our sessions to help them better negotiate fair outcomes.

The result is an efficient and economic process that is all the more valuable in difficult economic times.  The mediator manages the mediation,  helping the couple identify the issues and relevant information and then move through negotiations on how to best parent their children, split the assets of the marriage, and provide for needed financial support for a spouse.  The divorcing couple, who know their situation the best, makes these important decisions collaboratively in the informal environment of a conference room.  The mediator writes up their agreements that form the basis for a Separation Agreement.

At the end of the day, couples don’t part mortal enemies in mediations I’ve been privileged to facilitate.  They are practiced in how to make and implement important decisions about their kids collaboratively.  And, an added bonus when money is tight, my mediation clients avoid expensive litigation, leaving more in the pot to split up.

[1] Schultz, “Ugly economic times can lead to ugly divorces,” Forbes (July 15, 2008)

Early Stage Divorce Mediation requires information gathering by couples between sessions with their mediator.  Without reliable data identifying and valuing the property to be divided and the budgets of wife and husband going forward, it’s impossible to make good decisions about property division and the need, if any, for spousal maintenance.

At the end of the first mediation session, it is my practice to distribute financial and budget forms for completion outside the mediation room.  The financial forms ask for the details of bank accounts and balances, securities & investments, real estate, life insurance, privately held businesses, retirement accounts, cars & boats, and other personal property.  I also ask couples to bring in 2-3 years of Income Tax returns as well as a recent pay stub listing gross and net income on whatever basis employers compensate husband and/or wife.

The budget forms are designed to jump start the couple in estimating their monthly living expenses under two roofs instead of one.  They break out individual expenses as well as expenses related to the children of the marriage.

Couples interested in pursuing early stage mediation with a mediator often ask me if they should be doing some of this preparation on their own before coming to see me.  That’s usually not necessary or desirable in my opinion.  I typically don’t need to see the results of this homework until the third session in mediations where there are children involved.  That’s because my typical agenda begins with a parenting plan outlining the residential schedule of the children as well as how decisions about the children will be made.

Doing homework outside the mediation process is also risky in cases in which the couple does not communicate well or one party holds all the cards.  For example, if a husband has traditionally handled the finances and the wife is unsophisticated about the money side of the marriage, homework done by the husband may be devalued in the wife’s eyes. 

It’s important that the mediator have the opportunity to assess how decisions in the marriage are made before the homework is assigned.  That way, the mediator can parcel out the homework so that the results will be accepted by both parties.  For example, an impartial third party accountant can be brought in to value a business owned by the couple and operated by the husband or wife. 

In the case of the wife without financial experience, she can be charged with obtaining an appraisal or market analysis of the family home.  This serves the need of the mediator that the wife be engaged and empowered in the mediation process as well as the wife’s need to become more knowledgeable about the property to be divided in the divorce.

The very nasty and public Denise Richards-Charlie Sheen divorce brings home how vindictive and destructive divorces can be in America.  I don’t see people like that in my divorce mediation practice—husbands and wives who serve each other with divorce papers on Christmas Eve. 

Granted, my clients may not like each other much and may even exhibit high conflict behavior from time to time.  They seem to know intuitively, however, that going to court with warring lawyers, aggressive cross examination, and expert witnesses isn’t for them. So they turn to an experienced mediator (often before lawyers are involved) to help the real experts (i.e. the divorcing couple) come to agreement on a parenting plan, division of assets, and spousal maintenance.

How do divorcing couples know a mediator’s experience? Certifying associations such as the Association for Conflict Resolution (formerly the Academy of Family Law Mediators) can steer spouses in the right direction.  For example, I am a member of the ACR’s Advanced Family Law Mediation Panel, requiring hundreds of hours of family law mediation experience, specialized training, and peer review of mediation documents.

Do your own due diligence by asking a prospective mediator if he/she has experience mediating issues important to you and your spouse.  Stock options, closely held businesses, separate property vs. community property—and experienced family law mediator will have seen these issues in various contexts. 

And, finally, don’t underestimate website content. More and more of my mediation and collaborative law clients tell me that they feel they know me from my website blogs before ever meeting me.  For a lifelong learner with a yen for writing about life-giving pursuits, this is a powerful incentive to keep up my blogging.

What does the untimely death of journalist, Tim Russert, have to do with couples choosing mediation or collaborative law to resolve their divorces? Plenty, it turns out. In today’s New York Times OP-ED, William Kristol writes that ‘Big Tim’ “died too young, But he lived more than a full life—a life overflowing with achievements, and friendships, and love, and joy.”

As I read this powerful tribute to Russert three days after his fatal heart attack, I thought, “That’s exactly what all of us want in life.” More to the point, that’s what my mediation and collaborative law divorce clients mean when they say they need to move on. Typically, this is in response to my request at the first session that they name their high end goals from the mediation or collaborative law process.

For a couple choosing to create their own parenting plan and property settlement together with the help of a mediator or collaborative team, relationships are already important. It’s just that this particular relationship has become “stuck” in a way that no longer works for one or both of these spouses. For whatever reason, the sense of achievement, the friendships, the love and the joy of life have fled.

How do I know this? From the code words my clients use. High end goals are all about relationship and moving on. For example, a husband’s objective often includes helping a spouse transition to a new career or become financially secure. For parents, helping their children become confident, successful, and loving adults is often a shared vision.

At some point in the naming, however, the focus returns to the speaker and his/her need to move on with life—to reclaim what is missing in the relationship. And the end game which all of us aspire to but few reach is to attain a life overflowing with achievement, friendship, love, and joy—the life that Tim Russert had in spades.

For me as the family law mediator or collaborative lawyer, it’s both humbling and gratifying to help couples divorce with respect and move on with their lives. As painful as divorce is to a husband and wife, the vision of a new life a little like Tim Russert’s, becomes a powerful if silent motivation to negotiate differences and reach the finish line.

In my last blog, I discussed the difference between evaluative and facilitative mediators. How evaluative mediators are called in as the trial date approaches to settle the divorce by evaluating the legal strengths and weaknesses of each spouse’s “position.”

Facilitative mediators, on the other hand, leave the content of the mediation up to the parties and instead focus on the process of guiding the clients through all the issues important to obtaining a divorce in the State of Washington. Divorcing couples retain facilitative mediators in the early stages of a divorce, often before the Petition for Dissolution is filed. The focus of the in early stage divorce negotiations is interest-based, not rights-based. The decision-makers are the spouses. their agreements facilitated by a skilled mediator who provides a safe process and container in which the couple can make good and lasting decisions.

Facilitative divorce mediators are a diverse lot in background and experience. Although many mediators are lawyers by profession, other backgrounds are also represented in this field. For example, there are mental health professionals who may be best able to deal with significant communication problems between husband and wife or “high conflict” personalities. I also know of skilled mediators with a background in conflict management and organizational development consulting.

Acknowledging possible bias, I still believe that a legal background is invaluable for issue spotting and problem solving in early stage divorce mediation. Lawyers are trained to keep the negotiations on track, analyze facts, draw reasoned conclusions, and draft concise, comprehensive, unambiguous memoranda. If other disciplines are needed to manage emotions and good communications, these professionals can be included as collateral experts. While mediators who happen do be lawyers, don’t give legal advice, lawyers (particularly former litigators) seem to be thrive in this very different role. It is very satisfying to help divorcing couples achieve win-win outcomes without doing battle in court.

Experience also matters. Couples married for a few years without children or significant assets present less complicated issues and the need for a less experienced mediator. For mid to long-term marriages, parenting issues, significant property and/or spousal maintenance issues, however, a mediator’s experience in mediating parenting plans and property settlements is important to a comprehensive and efficient process. Stock options, pension valuations, closely-held family businesses, tracing separate property, family relocations—these are but a few of the issues that can and often do come up in mediations I facilitate.

These are complex issues calling for mediator with the right kind of experience. How can divorcing couples maximize their chances of finding a mediator who will tee up and facilitate discussion of these issues in a way that maximizes the opportunity for success? A good source of information is professional standing. The Association for Conflict Resolution ((formerly the Academy of Family Law Mediators) recognizes family law mediation experience by designating certain members as Advanced Family Law Practitioners for Conflict Resolution.

It’s not easy qualifying for this status. I know because I was recently approved after submitting an application the size of a telephone book. The prerequisites include a minimum of 60 hours of formal training, at least 250 hours of face-to-face mediations, and peer review of mediation documents.

Although a mediator’s background and experience do not guarantee success in the absence of spouses’ good will, focus on key interests, and spirit of compromise, together they form a winning combination for peaceful resolution of divorce issues.

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For divorcing couples considering mediation, it is important to understand that there are two very different kinds of mediation available to settle “out of court.” Depending on whether they choose early stage facilitative mediation as opposed to “eve of trial” evaluative mediation,  their experiences and degree of emotional satisfaction are likely to be very different. 

For most divorcing couples, their introduction to a mediator comes toward the end of the lawsuit when a judge or court rule orders mediation in an attempt to settle the divorce and clear the trial docket. Typically the couple’s lawyers pick the mediator, sometimes a retired judge or court commissioner. The mediator engages in “shuttle diplomacy” moving between two lawyers and their clients negotiating in separate rooms. The mediator typically practices what we call “evaluative mediation,” which means he/she feels free to evaluate and communicate the merits and weaknesses of “legal positions” taken by “each side.”

By giving his/her opinion as to what a judge might do, the mediator gets involved in the content or “what” of the negotiations. The imminent trial date before an unpredictable judge provides a powerful incentive to settle the case that very day. That’s what usually happens. Very few divorce cases go to trial.

The downside to late stage evaluative mediation is that it does not repair the damage to the couple’s relationship aggravated by the psychic and financial costs of litigation. These are resolutions based on one spouse’s ability to defeat the other spouse through reference to the law. These outcomes usually feel “win-lose” to people experiencing this kind of mediation. The pressure of settling on the eve of trial only adds to the feeling of loss and dissatisfaction.

That’s why I practice and support facilitative mediation after the decision to separate or divorce has been made, as an alternative to litigation with all the motions, hearings, depositions and briefs. Facilitative mediation focuses on the couple’s respective interests and needs. Although I sometimes am asked to mediate these “courthouse steps” divorce cases, most of my mediation practice is “early stage-facilitative.”

In facilitative mediation, the mediator owns the process but the parties own the content. The process can be defined as the ways the spouses and the mediator interact in order to realize each party’s high-end goals or outcomes. Process includes the sequence of the mediation as well as the interventions and techniques employed. A mediator who reframes an issue or speaks back what he/she has heard or sends the parties to “legal coaches” to talk about what a judge might do when faced with a particular set of facts is dealing with process.

In my practice, for example, I see my role as (1) guiding the clients through the divorce issues relevant to their particular family and financial circumstances, (2) identifying their basic interests and needs in order to facilitate their agreement on those issues, and (3) preparing a memorandum reflecting the spirit and substance of their agreement at the conclusion of mediation.

There are other basic differences in early stage facilitative mediation as I experience it. Although lawyers are often in the background, advising each spouse on legal questions, facilitative mediations are typically conducted without lawyers present. Spouses are in the same room, sitting side by side as they discuss and decide the details of their parenting plan and property settlement.

Facilitative mediators don’t evaluate their clients’ respective positions. Far from it, they ask their clients to focus on their key interests and refrain from taking positions. The goal is a fair and durable agreement—one that each person can look back on 2-3 years down the road and feel good about. Not in the sense that it was a “home run”; rather, that there was a fundamental fairness about the process and result that allows these former spouses to get on with their lives.

From time to time, particularly in the spring, I get inquiries from couples who want my help as a mediator in negotiating a prenuptial agreement. Typically, the wedding date has been set several months down the road and either the bride or groom want an agreement to protect assets brought into the marriage from eventual distribution to his or her partner should there be a divorce down the road. In a community property state like Washington, this is a legitimate concern if the bride or groom are bringing significant property or inheritances into the marriage and want to prevent commingling of separate and community assets.

At the outset, I congratulate couples for involving a mediator in discussing a very sensitive subject at a very sensitive time. Discussing possible failure of a marriage during an engagement defines a difficult conversation, even with the help of a skilled mediator.

From the standpoint of a family law mediator’s goal of a durable agreement that will stand the test of time, the issues are challenging. The draft agreement may go well beyond property brought into the marriage, stipulating that most, if not all of the earnings during marriage, will also be deemed separate property not subject to division between the spouses should their marriage fail. Further, the power balance so important in effective mediation is difficult to measure with so much emotion involved. The couple is very much in love, trusting each other to be fair even though the proposed agreement may be very one-sided.

I feel that for these agreements to fulfill their promise, they must be fair to all concerned. Attempts to restrict the number of months or years of spousal maintenance depending on the number of years the marriage lasts don’t work very well if the disadvantaged spouse is destitute after a long marriage.

I was so proud of Seattle during this past week as our fair city successfully hosted the “Seeds of Compassion” international gathering.  His Holiness, the Dali Lama, Archbishop Desmond Tutu, and other luminaries of the spirit drew thousands wanting to learn more about the role of compassion in improving our lives.  For once, Seattle’s image as a “cutting edge” metropolis of the  21^st century was reflected NOT in things, e.g. jet aircraft, software, on-line sales or espresso coffee BUT, instead, the spirit of compassion and what it means today.

 All this prompted me to reflect on the role and gift of compassion in divorce mediation and the family law collaborative law process.  Divorce is typically a very stressful time for couples and their families.  A good mediator and collaborative lawyer will do everything in his or her power to manage and, hopefully, reduce the stress.  The mental health professional on a collaborative team is critical to this result. The goal is to hold the couple in a safe container where they can make wise choices and durable agreements.  

 In the mediation context, I start my private sessions with each spouse at the initial meeting by asking about special needs.  I always ask how the kids are doing and what each spouse’s high end goals are for the mediation.  I suggest that the parents bring in pictures of their children while we develop a parenting plan.  It helps me to see the beneficiaries of a life-giving process during difficult times.  I always keep a box of Kleenex handy, reminding my clients that tears are OK and nothing to be embarrassed about.

 My hope is that these  and other strategies will help enlarge my “capacity for feeling what it is like to live inside someone else’s skin…,”  part of Frederick Beuchner’s definition of compassion?  But I also believe that the motive is action—my goal of facilitating agreements that allow clients to move on with their lives while preserving important relationships.  As Archbishop Tutu points out, “Compassion is not just being sentimental and feeling with someone, but seeking to change the situation.  If you are going to be compassionate, be prepared for action!”