Kane Law & Divorce Mediation Services

Yesterday as I perused the New York Times Sunday edition on a cloudy August Sunday, my eye caught the headline of Brant v. Brant, a nasty “high-stakes” divorce playing out in Connecticut courts. The author writes that this case is “…one of the most bitter, high-profile divorces in years. By the time Brant v. Brant goes to trial on September 20, the two sides will have generated more than 12,000 pages of public divorce documents (with thousands more sealed), paid millions of dollars in lawyers fees and fractured an already delicate cadre of family and friends forced to take sides.” (Laura M. Holson, “Divorce, Celebrity Style,” Sunday Styles, Sunday, August 22, 2010).

My first reaction was “Wow! That says it all—no privacy for the most confidential information in a marriage, horrific expenses that can ravage the financial security of divorcing spouses, and a train wreck for important relationships of family and friends.”

My second reaction was reflective. How lucky I am to focus my professional practice on the collaborative divorce models of mediation and the collaborative process. Couples who choose a good mediator or collaborative lawyer are more concerned with preserving important relationships with children, parents, siblings, and friends. They are sensitive to the high costs of traditional litigated divorce. While unwanted publicity of court documents may not have occurred to them, these couples are comforted by the knowledge that information shared in divorce mediation is generally privileged from disclosure without mutual consent.

As a mediator takes a divorcing couple through all the issues that need to be discussed for a comprehensive parenting plan and/or property settlement, the focus is on high-end goals for each spouse—not positions dictated by real or imagined wrongdoing by the other spouse. “I want to have a cooperative relationship with my ex based on mutual respect.” “I want us to parent with consistency and not put our kids in the middle of a disagreement.” “I want to be independent and financially secure.” These are the kind of goals that drive couples to consider mediation and collaborative divorce in the first place.

This is not to place divorcing couples choosing mediation on a pedestal. They reflect the same kind of pain, recrimination, and loss so often associated with divorce. The difference is that couples choosing mediation are able to look to the future instead of the past. And a future with better relationships, better joint parenting, and more financial security sounds infinitely preferable to the post-divorce lives of the Times marital warriors, Mr. and Mrs. Brant.
 

When married couples in the Seattle-Bellevue area contact me to inquire about what early stage divorce mediation looks like, they are usually motivated by (1) saving money, (2) fear of lawyers/legal fees, and (3) the desire to maintain a good relationship with their spouse.  They are also, by and large, “can do” people who are willing to do “homework” between sessions to keep down costs.

This concern about costs runs the gamut from the Microsoft executive and small business owners to young couples who have much financial stress in their lives.  My mission and message is to be as efficient as possible in helping couples address all the issues that need to be determined to parent well in separate households, split community property fairly, and meet their agreed post-divorce budgets. 

Efficiency means using every minute of our two hour sessions to move through the prearranged agenda with a laser-like focus.  Efficiency also means assigning homework to couples to complete between mediation sessions.  A third aspect of an efficient mediation is referring mediation clients to other professionals for al a carte services between mediations.  Finally, a good divorce mediator is attentive to managing emotionally charged exchanges between spouses during sessions.  I am quick to remind my clients that it takes at least 30 minutes to calm down after an emotional exchange—and that ½ hour, which the clients are paying for, is largely wasted.

 This mediator uses Progress Notes sent out after each mediation session to propose an agenda for the next meeting, e.g., completion of a parenting plan, discussion of child support, valuation of community assets and liabilities.  Usually, the homework (e.g., create individual post-divorce budgets, will track the agenda items.  Thus, the clients have time to prepare for each session and we don’t lose time in unfocused conversation. That being said, the Progress Notes always emphasize that the spouses’ agenda items trump the mediator’s.  Often, there is something important that has “just come up.” We never ignore or delay urgent decision-making.

Referring mediation clients to outside professionals recognizes that divorce mediators are not “universal experts.” Often, spouses want to know what a judge might do about spousal maintenance or property division issues.  I keep a list of family law lawyers who are willing to “coach” clients behind the scenes so they can better negotiate on their own behalf.  Or the need might be for a financial analyst to educate a spouse about the long-term financial impact of various property splits or spousal maintenance options. Whatever the a la carte need, an experienced mediator will help find the professional to help the clients make fully informed decisions.

Managing client emotions during divorce mediation takes good observational skills and conflict management experience. Typically clients calm down more quickly with the reminder that the financial costs increase when the discussions get “hot and heavy.”  Reminding clients that “saving money” is an important reason they are at the mediation table in the first place is a powerful antidote to wasted time.

In my last post, I discussed the important direct benefits of Divorce Progress Notes.  Celebrating the interim agreements reached, reminding couples of their homework to prepare for the next session and creating the agenda—these deliverables all serve to help couples move through parenting and property issues to decision-making as efficiently as possible.

There are also indirect benefits from the use of Progress Notes, most importantly:

• Illuminating communication “bad habits” that are getting in the way of efficient brainstorming;
• Brainstorming where there is ambiguity or other options in the tentative agreements or views of the parties;
• Reinforcing my admonition about one-on-one discussions “between meetings” about finances and other touchy topics; and
• Emphasizing  by repetition the relationship between each spouse’s high end goals and the decisions reached;

Every couple I see has unique communication habits honed over the years.  Here I focus on bad habits that get in the way of good agreements in the best interests of the wife and husband.  There may be the gentle put-down that doesn’t feel gentle at all to the recipient.  Or couples that intuitively “think” they know each other’s thoughts and motives—and are not bashful about exposing their perception of unworthy motives on the part of their partner.: “All John (or Mary) is interested in is making sure I don’t have enough money to afford a decent house.”

I remind my clients in Progress Notes that impugning the motives of their spouse must be avoided if they are to achieve their goals.  Focus on “I” messages instead of “You” messages in communicating about important things (and what is more important that how you share your kids and property).  “I” messages (1) keep the focus on me; (2) are non-judgmental; (3) Describe my needs and feelings; (4)Do not lower the other’s self esteem. “You” messages, on the other hand, (1) put the focus on the other person; (2) Seldom mention my needs; (3)Are blameful; and (4)Tend to erode self-esteem.

Without the clutter of “You” messages, couples can brainstorm solutions to their issues. Continuing the brainstorming is part of this mediator’s Progress Notes.  I use lots of parentheses in raising questions as I summarize decisions and issues discussed at each session. For example, (Have you considered who stands to gain the most from taking the children as personal deductions?) (What about the possibility of avoiding the expense of shifting 401K retirement assets from a past employer to your spouse by first rolling over the assets into a rollover IRA in the former employee’s name?). Sometimes good ideas take a while to germinate—they can’t always be summoned intuitively during a 2 hour mediation session or 4-way collaborative meeting.

Progress Notes also allow the mediator to warn clients about things to avoid between sessions. Unless I am dealing with a couple with excellent interpersonal communication skills and knowledge about finances, I typically warn clients to be careful about one-on-one discussions about money and financial support.  I do this in bold letters in the Progress Notes: ‘Please do not discuss the substance of your divorce negotiations/differences outside the mediation room, except with a professional advisor.  That goes for family, friends, and particularly, communications between the two of you in or out of the house.”

Most importantly, Progress Notes allow the mediator or collaborative lawyer to repeat the high end goals expressed by both wife and husband at the first session—with the suggestion that each client measure the progress made and the decisions reached on the standard of his or her goals in entering mediation or the collaborative divorce process. One of my favorite is “I want to be able to stand next to my former spouse and witness our daughter’s wedding together.”

These high end goals are like the lighthouse beacon that serves to bring the ship through the shoals and storms to a safe harbor after a successful voyage. They guide us toward a respectful and fair divorce.  What a rewarding feeling of accomplishment on the part of both clients as well as the guides helping them along the way!

Labor Day is the traditional end of summer vacation and return to work.  Not surprisingly, As a divorce mediator and collaborative lawyer, I see an upsurge of calls from couples who have deferred the hard questions of how to best conclude their marriages and parent their children in separate households.  I hear in their voices a sense of purpose and urgency.  It’s time to get back to work.

I’m guessing that the surge in the stock market and up tick in real estate prices have played a role in moving couples from planning toward action.  Some experts say that this painful recession is technically over even though unemployment has yet to move in a positive direction.  Clients tell me that they are no longer avoiding their quarterly retirement reports as their investments have chalked up the best quarterly gain in years. Nor do my mediation clients any longer take the position that 2009 house values are an aberration that should be ignored in valuing community property.

From my perspective, this renewed courage to face reality is healthy. And the willingness of couples to explore mediated divorce settlements or the collaborative divorce process is encouraging.  The good news is that mediation continues to offer an economically and emotionally satisfying alternative to traditional court-centered divorce.  And the collaborative process really does provide that necessary “safe container” for many couples needing the support of a professional team to successfully navigate the shoals of divorce.

For couples starting mediated divorce settlement negotiations or the collaborative divorce process in the last few months of 2009, it appears more likely than not that their divorce finalization will coincide with the economy’s emergence from recession into a new growth cycle.  That’s a powerful transition to new life on both counts.

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.

When I set the table for a mediation session, I’m sometimes reminded of all the hoopla surrounding the beginning of the Vietnam Peace Talks in Paris in the early 1970s. For those not around at the time, there were months of wrangling between the U.S. and North Vietnam on the size and shape of the table—not to mention the seating arrangements for the negotiators. I’ve found through experience that the physical environment is as important to the success of divorce mediation as it is to questions of war and peace.

Setting the mediation table means making sure that there are two chairs facing me across the conference room table. I want the divorcing couple to be sitting side by side working through their differences—not facing each other across the table. Facing each other promotes positional negotiations and confrontation, neither of which is conducive to success. Also, it is important that the mediator be able to give each spouse equal face time, reinforcing the truth that as the mediator, I am totally impartial and listening intently to both spouses on the issues important to each spouse. That becomes impossible if the couple is facing each other instead of me.

Sometimes one or both spouses will move away from each other consciously or unconsciously during the session. On one occasion, a spouse actually moved around the rectangular table, allowing him to stare at his spouse. Usually, a simple reminder will suffice to return the couple to their original positions. The more glaring example was a tip-off that this particular mediation was in trouble.

Two blank sheets of paper in front of each spouse complete the table setting. It’s a constant reminder of one of my rules, DON’T INTERRUPT!!!. As I state at the opening session, the piece of paper is for note taking in case your spouse says something that doesn’t ring true or complete in your view. I will always give both spouses equal time to correct the record so a written reminder of the “point” allows for this to happen without the need to interrupt.

These are a few examples of the importance I place on the physical environment for mediation sessions. I am always alert for whatever the divorcing couple needs to promote a learning conversation resulting in a durable agreement.