Kane Law & Divorce Mediation Services - Kirkland/Bellevue/Issaquah/Redmond/Seattle

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!”

Many couples I work with as a divorce mediator and collaborative lawyer have trouble communicating with each other. No surprise here, but certainly not helpful in negotiating with the help of a mediator or collaborative team how best to parent children and divide marital assets.

It’s one thing to inform clients that my objective as a mediator is to facilitate a peaceful resolution of their marriage that allows clients to move on with their lives and preserve important relationships at the same time. It’s quite another thing to manage a process where spouses are talking past one another—unintentionally causing hurt feelings and pushback. So often, it’s not the content that’s important but the judgmental language and tone inflection that invites retaliation and threatens the mediation process.

In such situations, I often recommend a wonderful little paperback, Difficult Conversations by Stone, Patton & Heen. This book is equally useful in raising difficult issues with bosses, children, and clients but I see the results in divorce mediations and collaborative law. Among the pearls of wisdom is the authors’ advice to start with identity when discussing difficult topics. Three core identity issues are: Am I competent?; Am I a good person? and Am I worthy of love?

During a mediation session, I listen closely for attacks on these core identities and reframe what I am hearing to take the sting out of the comment so that we can move on. For example, a husband’s thoughtless remark that his wife doesn’t understand the marriage finances might invite the retort that the husband has never shared financial matters. The storm clouds gather quickly.

A good mediator or collaborative lawyer will be alert to such tense exchanges and quick to reframe by saying something like, “What I’m hearing is that George has handled the finances while Joan has taken responsibility for nurturing the children on a day-to-day basis.” By honoring both spouses’ identities as competent and valuable people with important skills, the mediator helps to bring the temperature down so the couple can focus on what brings them to mediation in the first place.

As a family law mediator and collaborative law professional, I am constantly on the alert for signs that my clients lack self confidence in identifying and negotiating their respective needs going forward.  A wife or husband who feels powerless in negotiating parenting arrangements or financial matters cannot negotiate a durable agreement in her or his best interests.

Wait a minute, you might say.  In every marriage, one spouse is more competent than the other in different facets of a marriage.  For example, the husband may see to investments, financing the house and other major purchases, and sometimes the checkbook balancing.  The wife may be the “hands on” parent, knowledgeable on the comings and goings of the kids as well as the homework assignments.

That’s all true and, admittedly, we’re not looking for perfection when we talk about power in the mediation and collaborative law context.  What is important is confidence in the negotiations.  I’m constantly amazed by clients whose grasp of things financial improve dramatically during the mediation process.  By the same token, the absentee parent who has this or her children full time every other weekend typically becomes more “hands on” as the mediation and collaborative law process unfolds.

In mediation cases where the lack of self confidence is palpable and continuing, I urge the spouses to retain a certified divorce financial analyst or a child specialist, depending on the issues involved.  In rare situations where I conclude that professional assistance is necessary for meaningful negotiations and a durable final agreement, I will insist on this. These jointly retained professionals are barred by agreement from testifying for either party if the mediation or collaborative process fails and their work product is treated as confidential.

In other cases, I will urge a husband or wife to retain a divorce coach to help him or her deal with the emotional fallout of divorce.  My objective is always to balance the  power between the negotiating parties so they can make wise decisions for themselves and move toward their preferred futures.

I sometimes get questions about non-disclosure of assets by the partner of a spouse who’s thinking about divorce mediation. More often than not, the spouse is a wife who knows very little about the investments her husband has made. Sometimes there is an expressed lack of trust that feeds into the wife’s feeling of inadequacy in things financial.

I tell the caller that a mediator has several tools for dealing with the fear or reality that one spouse is hiding assets. First, the language of the mediation agreement that I use provides that each spouse “must disclose all relevant and material facts and information regarding the matters discussed.” The agreement also stipulates that the sale or transfer of community or separate property will not be conducted without mutual consent.

Second, I ask each spouse to disclose all assets and liabilities in writing with great specificity. If one spouse appears naïve about finances or the couple’s financial picture is murky, I will generally recommend that a financial consultant be retained to help support the couple and particularly the wife in gathering and evaluating the finances of the marriage. My job as a mediator is to do all I can to assure that both husband and wife have power to make decisions about their finances.

Last, but not least, I ask couples if is they want language in their final Memorandum of Understanding addressing non-disclosure of assets. For example, sample language might provide that if assets over a specified value (maybe $500) have not been disclosed, such assets are deemed owned 50-50 by the couple after their marriage has been dissolved.

Of course, none or this guarantees that hidden assets will ever be found. But discovery in litigation does not provide iron clad guarantees either. I do feel that mediation is probably not a good choice for a spouse with a deep persistent suspicion that her or his spouse is hiding assets. It doesn’t really matter if the fear is well grounded. If distrust permeates the negotiations, a successful outcome is unlikely.

In both the mediation and collaborative process for negotiating peaceful property settlements and parenting plans, spouses need to know that they are in charge of the content and final outcome of the process. The mediator’s job is to facilitate the process by moving the couple in a totally impartial way through all the topics important to either spouse or considered relevant by the mediator. In the collaborative process, the attorneys and other team members form a safe container in which the couple can feel supported and mutually powerful as they negotiate a final settlement.

But how are couples to know if they are likely to succeed. This is more than a “time and money’ issue. The failure to get to the finish line can mean protracted litigation and a “courthouse steps” settlement with little or no emotional satisfaction for either husband or wife.

Stuart Webb and Ronald Ousky in The Collaborative Way to Divorce (Hudson Street Press, 2006) suggested the following questionnaire for clients to assess the probability that collaborative divorce will work for them. As a collaborative lawyer who frequently wears my “mediator’s” hat, I strongly believe that these questions are equally relevant for couples contemplating divorce mediation.

“Please indicate how much you agree or disagree with these statements using the following numbering system:

1. strongly agree
2. disagree
3. neutral
4. agree
5. strongly agree

1. My ability to achieve a successful outcome in the divorce primarily will depend on the decisions I make during the process.

2. In order to achieve my most important goals, I am willing to let go of some smaller, short-term issues event though it may be very hard to do.

3. I am capable of making the emotional commitment necessary to achieve the best possible outcome.

4. I am not afraid of or intimidated by my spouse.

5. I am willing to try to see things from my spouse’s point of view in order to help achieve the best possible outcome.

6. I believe it is possible for my spouse and me to restore enough trust in each other to achieve a successful outcome.

7. I am willing to commit myself fully to resolvingn the issues through the Collaborative process by working toward common interests rather than simply arguing in favor of my positions.

8. It is important to me that my spouse and I maintain a respectful and effectivce relationship after the divorce.

9. I have accepted the fact that this divorce is going to happen.

10. I believe that it is very important that our children maintain a strong, healthy relationship with both parents.

Score: ? 30: likely that Collaborative Divorce is a good fit (more so ?40)

Score: 20-30: borderline

Score: ? 20: likely that Collaborative Divorce will be too frustrating

Circumstances such as abuse, addiction & untreated mental illness should be considered, regardless of score.” (as quoted in Well-Trained Professionals Make Collaborative Practice an Inclusive Practice, Marie Louise Mesquita, PhD, Collaborative Review, Summer 2007)

Most divorcing couples who don’t want to go to court or “do it themselves,” think of their choice as between mediation or collaborative law. Mediation works for couples who can negotiate on their own behalf with the help of a skilled mediator. The collaborative process involves a team of professionals who support the couple in negotiating a fair settlement. But sometimes the couple and their team of professionals are unable to move forward because there is no case manager and the couple cannot agree on a timetable or agenda. This scenario crys out for the skills of a mediator—a hybrid process whose time has come.

As a divorce mediator, one of my most important roles is to manage the mediation. At the close of every mediation session (usually 2 hours in length), we schedule a next session and agree to homework to be done by husband and wife between sessions. For example, there might be a business/house valuation to complete or a child specialist to visit for assistance in developing a parenting plan.

My mediation clients and I lead busy lives and we accommodate everyone’s scheduling needs with this caveat. No one is allowed to delay the mediation process without a good reason. In most cases, spouses conclude an overall agreement on the parenting plan, property settlement, and spousal maintenance in 4-8 months. This typically includes a detailed Memorandum of Understanding reciting all of the agreements of the wife and husband.

Contrast this with the typical collaborative law divorce where the spouses are supported by a team of lawyers, financial and mental health specialists, and other professionals on an “as needed” basis. Too often, the process gets bogged down because no one is able to function as the case manager. If the husband or wife wants to delay the process for whatever reason, the lawyers have little power to move things along. The squeaky wheel gets all the grease as the saying goes. But what about William Gladstone’s famous quote, “Justice delayed is justice denied.”?

In the litigation world, the judge functions as the case manager. There are deadlines for pretrial discovery, motions, and trial. I believe that the mediator could and should substitute for the judge in the role of a case manager in the collaborative divorce process. It is extremely valuable for the clients, lawyers, and other professional team members to know that there is a neutral administrator available if and when that becomes necessary.

This doesn’t mean that the mediator gets involved in negotiations between the lawyers and is present at all the 4-way meetings. Nor are the team professionals and clients answerable to the mediator as they would be to a judge. What it does mean, however, is that the mediator is introduced as part of the collaborative professional team with the stated role of moving the collaborative case forward if it gets bogged down. He or she is accountable to the parties for overall administration. Spouses know from the beginning that the mediator will be called in as necessary—in itself a powerful incentive to get the job done.

My Dad’s recent death at 91 brought home to me the importance of relationships to a full and satisfying life. My siblings and I expected a half-full church occupied mainly by 75 children, stepchildren, grandchildren and great grandchildren. After all, very few of Dad’s friends and business associates were still alive. Imagine our surprise when almost 400 mourners showed up—filling every aisle and pew. There were people from Boeing, parishioners who had known dad for years, and one elderly man who had known Dad for only eleven months at the Ida Culver apartments told me, “Your dad was like a brother to me. I’ll miss him a lot.”

The mourners were not all old people. There were lots of middle-aged and even a few “20 some things.” One young lady who worked as a trainer at the local athletic club at Greenlake, wrote me, “Your dad always called me ‘Dear.’ At first I thought it was because he couldn’t remember my name but later I realized that this was a term of endearment. When I am 90, I want to be just like your dad—active and reaching out to other people.”

There were lots of lessons in Dad’s death for my profession of family mediation and collaborative law. It’s struck me that I’ve known these lessons for years prior to his death and that contributed to my decision to focus my mediation and legal practice on personal and family relationships. In helping spouses and parents mediate and collaboratively negotiate divorces and parenting plans, I feel more acutely the truth that preserving relationships is really important for themselves and their children.

My clients are generally caring people undergoing a lot of stress or they wouldn’t be seeking my legal and mediation services. But sometimes they need reminding that their spouse is the second most important person in their children’s lives. It helps to take the long view and imagine yourself at your son’s high school graduation or daughter’s wedding. Most parents and spouses see themselves as sharing the joy and pride of these very special times. Their chances of doing so are much greater if they have been gentle with each other in ending their marriages and deciding collaboratively how to parent their children.

What’s the difference between mediation and collaborative law and which would be better for me? This is one of the first and most important questions I get from a wife or husband thinking about how to divorce without hostility and court battles.

As a former litigator for almost 30 years, I have strong views on this topic. I feel that there are so many advantages to friendly divorces that mediation or collaborative law is a “no brainer” for the vast majority of couples. For me, it’s deeply satisfying and life-giving to tell prospective clients that I have put away my weapons of war and limit my practice to helping people decide how to divide their property, meet their future budgets, and (in most cases) support their children financially and emotionally.

Back to the question, there are four choices available to people who value peaceful negotiated ends to marriage as opposed to courtroom litigation usually ending in settlement just before trial. I “slice and dice” these choices in ascending order from no support to lots of support.

“DO IT YOURSELF” OPTION. The first is a “do it yourself” option that works for very few people in my experience. Couples can download the court forms from the internet, try to divide their assets and liabilities and agree on spousal and child support, fill these confusing forms correctly, and take them to one of the Commissioners who just might sign off on your divorce. I see some of these couples in mediation 2-3 years later when mom or dad want changes to the parenting plan.

“LAWYER PREPARES PAPERS” OPTION. Hiring a lawyer to prepare the papers assumes that the divorcing couple have already agreed on a property settlement and parenting plan or, more commonly, one spouse merely dictates the terms and the other spouse agrees. The lawyer represents the dictating spouse and the other spouse acknowledges that the lawyer does not represent him/her. This works best in short term marriages with no real assets and either no kids or an absentee parent. The passive spouse (usually the husband) is motivated to cooperate in order to end the marriage quickly. If everything works smoothly, this option can cost $1000 or less.

THE “MEDIATION” OPTION. Divorcing couples opting for the mediation model typically do not feel they need lawyers by their side as they negotiate their divorce collaboratively. The mediator’s job is to be totally impartial and help the couple address the important issues of property and debt division, spousal maintenance, and how the children will be supported and raised after the divorce. At the end of the process, the mediator prepares a Memorandum of Understanding that recites the spouses’ agreements on all these issues. During the mediation process, the husband and wife are encouraged to consult with lawyer coaches regarding “legal rights” if that helps them negotiate a settlement that works for each of them over the long run. People with multi-million dollar assets on down opt for mediation. Lawyers typically are not present during the mediation sessions. The key is that the couple each have power to negotiate a fair settlement with the help of the mediator. A good mediator makes sure that each party has power and feels heard around the mediation table. Depending on how long it takes to negotiate the terms of the divorce, mediation fees are typically in the $4000 to $6000 range plus the cost of lawyer-coaches who may also help the couple file the final divorce documents.

THE “COLLABORATIVE LAW” OPTION. This is the “Cadillac” of the peaceful divorce options and is especially useful when the wife (or husband) feels unable to negotiate successful outcomes . In the collaborative model, each spouse hires a lawyer with special training and commitment to resolving divorces without fighting in court. The lawyers and the spouses agree to resolve the property settlement, spousal maintenance, and parenting plan amicably. The lawyers assemble a team usually including a certified financial divorce analyst and mental health therapist to work with the couple on communication skills. Other professionals may be retained to provide career counseling and other services. The objective is to provide a safe container for the couple to discuss and come to agreement on the final settlement. The lawyers then prepare the final separation agreement and court papers. If husband or wife decides to “go to court,” the lawyers and other professionals must resign and new counsel must be hired. The cost of support by two lawyers plus the other team professionals can range from $15,000 to $25,000.

Couples choosing the mediation and collaborative law option report a high level of satisfaction with the process. As I tell my mediation and collaborative law clients, my goal is a durable agreement that is fundamentally fair to both husband and wife. You might not get everything that you want, but the negotiated outcome allows each spouse to move on with his or her life.