So here I was ... preparing for a hearing on Monday -- actually a full-blown trial, more or less. My client was not inclined to settle. The other side was militant ... no way they were going to pay my client a thing. Never.
And yet we settled. Essentially, counsel for each side conducted a mediation by remote device. Through telephone calls and e-mails, counsel for each party came to the conclusion that the hearing and the prep work involved would wind up costing our clients more than they were likely to get in their most avaricious dreams. Accordingly, counsel analyzed the situation with their clients and in the best interests of the parties came to settlement. Neither side felt particularly good about it. Lots of money had been spent getting to that point, but the facts were: a quick settlement was in the best interests of the parties.
Mediation in the traditional sense would have saved a lot of grief, but in the end the process of discovery achieved through force of legal obligation what the parties could have laid out in the first place. Just that everyone paid a lot more to get there.
www.legalsolutionsllc.net
Friday, October 22, 2010
Wednesday, October 20, 2010
Seminar
At a seminar today -- MWI has a 40 hour mediation class and I will be assisting in the process.
Please read my website: www.legalsolutionsllc.net for a discussion on mediation.
Please read my website: www.legalsolutionsllc.net for a discussion on mediation.
Thursday, September 30, 2010
No money ... and a need
I have received a number of phone calls recently from desperate people ... desperate for legal assistance in the divorce process but unable to afford the retainers demanded by family law attorneys, let alone the costs of full litigation.
Worse, a few calls have been from couples involved in the divorce process but "want out" from under their attorneys whom they feel are charging too much, not returning calls, causing needless trouble ... in short giving less that the representation that they feel that they deserve.
In these cases I have tried to outline the benefits of mediation and the differences in the cost structure. It just seems that in the heat of needing to divorce, everyone "wants a lawyer to defend their rights" but in retrospect, they are appalled at what they have done. The problem with mediation seems to be that people are simply unaware of the benefits -- or have not even heard of the alternative. Why is that?
In some states, effectively, you cannot even get to court without having first tried to mediate the divorce, but in others there seems to be a willful "looking the other way," a sense of "you need a lawyer." Who does this benefit? Clearly, not the parties seeking the divorce.
www.legalsolutionsllc.net
While I absolutely agree that a party would be well served to have an attorney review his or her separation agreement, it strikes me that a whole lot of relatively simple divorces could be best handled cooperatively.
Worse, a few calls have been from couples involved in the divorce process but "want out" from under their attorneys whom they feel are charging too much, not returning calls, causing needless trouble ... in short giving less that the representation that they feel that they deserve.
In these cases I have tried to outline the benefits of mediation and the differences in the cost structure. It just seems that in the heat of needing to divorce, everyone "wants a lawyer to defend their rights" but in retrospect, they are appalled at what they have done. The problem with mediation seems to be that people are simply unaware of the benefits -- or have not even heard of the alternative. Why is that?
In some states, effectively, you cannot even get to court without having first tried to mediate the divorce, but in others there seems to be a willful "looking the other way," a sense of "you need a lawyer." Who does this benefit? Clearly, not the parties seeking the divorce.
www.legalsolutionsllc.net
While I absolutely agree that a party would be well served to have an attorney review his or her separation agreement, it strikes me that a whole lot of relatively simple divorces could be best handled cooperatively.
Thursday, September 16, 2010
Alimony Summit
I attended the alimony summit yesterday at the MCLE (Mass continuing legal education) -- to check on updates and the thoughts of sitting judges, etc.
The essential update is this: make explicit mention of alimony in your separation agreement and if possible provide some details -- rationales -- for the details.
Pierce ... still confuses practitioners
Survival or merger ... so much depends on which side you represent and what you may have worked out for the long term between the parties. I think that I still favor survival (that is where the details of agreement are not meant to be subject to further judicial review) but where parties could simply not come to a complete agreement for say. duration or termination, merger might still be the better choice.
Of course, as I have written before on www.legalsolutionsllc.net in my articles http://www.legalsolutionsllc.net/Articles/ that fact that you "survived" your alimony clause really doesn't mean squat. Yesterday, one of the judges on the panel told of how the week before it had granted a modification to a plaintiff where the couple had been divorced for over 10 years -- because the change in circumstances had been so acute. Supposedly, even the defendant's attorney only "sheepishly" tried to make a showing of why a modification should not be granted.
Which really puts front and center that question/statement that keeps arising ... marriage may not be for everyone? Or, put more delicately, marriage really IS for ever.
The essential update is this: make explicit mention of alimony in your separation agreement and if possible provide some details -- rationales -- for the details.
Pierce ... still confuses practitioners
Survival or merger ... so much depends on which side you represent and what you may have worked out for the long term between the parties. I think that I still favor survival (that is where the details of agreement are not meant to be subject to further judicial review) but where parties could simply not come to a complete agreement for say. duration or termination, merger might still be the better choice.
Of course, as I have written before on www.legalsolutionsllc.net in my articles http://www.legalsolutionsllc.net/Articles/ that fact that you "survived" your alimony clause really doesn't mean squat. Yesterday, one of the judges on the panel told of how the week before it had granted a modification to a plaintiff where the couple had been divorced for over 10 years -- because the change in circumstances had been so acute. Supposedly, even the defendant's attorney only "sheepishly" tried to make a showing of why a modification should not be granted.
Which really puts front and center that question/statement that keeps arising ... marriage may not be for everyone? Or, put more delicately, marriage really IS for ever.
Tuesday, September 7, 2010
Choice of Mediator
Last week a fellow family law attorney referred a couple to me for mediation. Except that I never got to speak to either of them: "she" did not want a male mediator. I have not written about gender and choice of counsel / mediator on my website www.legalsolutionsllc.net but perhaps now would be the time to do so.
In Court, there is the perception of choice of counsel affording the party an advantage. Perhaps in front of a few select judges this may be the case: certain Judges are relatively notorious in this way ... but you have to pick counsel before you get assigned your Judge, so this can easily backfire as a strategy. Equally, I have heard of men picking women and women picking men "to show that they are not against the other sex and are fair minded." Women pick women and men pick men to fulfill the need to be better understood ....
I would much rather have someone pick a lawyer based on their personal stylistic "fit" and perceived competency. I just don't think that picking a given gender gives you any advantage at all. Most of the family law attorneys that I know are excellent lawyers and will be zealous advocates for their clients irrespective of the client's gender or their own gender. LGTB clients may prefer to engage an attorney particularly versed in LGTB issues, "someone like us," but it would be a mistake to think that only people in that community can represent that community competently or have the client's best interests at heart.
I have written about what I believe to be the problem of family law attorneys preferring to litigate as opposed to mediate http://www.legalsolutionsllc.net/Articles/Inherent-Conflict-A-Case-for-Mediation.shtml, but what I am attempting to address is gender-based selection as a sole criterion. It is just silly. The person who rejects a mediator of a particular gender can always hire a co-mediator of the same gender "to balance the equation." In practice, however, a good mediator is not only story-neutral, but completely gender-neutral too. No matter what the story, it is likely that an experienced mediator has "been there" before. I am comforted in knowing the female mediator the couple chose is an excellent mediator and very competent attorney -- a true neutral.
In Court, there is the perception of choice of counsel affording the party an advantage. Perhaps in front of a few select judges this may be the case: certain Judges are relatively notorious in this way ... but you have to pick counsel before you get assigned your Judge, so this can easily backfire as a strategy. Equally, I have heard of men picking women and women picking men "to show that they are not against the other sex and are fair minded." Women pick women and men pick men to fulfill the need to be better understood ....
I would much rather have someone pick a lawyer based on their personal stylistic "fit" and perceived competency. I just don't think that picking a given gender gives you any advantage at all. Most of the family law attorneys that I know are excellent lawyers and will be zealous advocates for their clients irrespective of the client's gender or their own gender. LGTB clients may prefer to engage an attorney particularly versed in LGTB issues, "someone like us," but it would be a mistake to think that only people in that community can represent that community competently or have the client's best interests at heart.
I have written about what I believe to be the problem of family law attorneys preferring to litigate as opposed to mediate http://www.legalsolutionsllc.net/Articles/Inherent-Conflict-A-Case-for-Mediation.shtml, but what I am attempting to address is gender-based selection as a sole criterion. It is just silly. The person who rejects a mediator of a particular gender can always hire a co-mediator of the same gender "to balance the equation." In practice, however, a good mediator is not only story-neutral, but completely gender-neutral too. No matter what the story, it is likely that an experienced mediator has "been there" before. I am comforted in knowing the female mediator the couple chose is an excellent mediator and very competent attorney -- a true neutral.
Thursday, September 2, 2010
Alimony Summit
The Boston Bar / MCLE is hosting an "alimony summit" designed to review the current status of the law given the "interesting" decisions of the past 18 months handed down by the various courts of the Commonwealth. I cannot wait.
Of course, the head of the Boston Bar's taskforce is a "family law" attorney as are 9 of the 10 people on the committee. As I have written on my webpage www.legalsolutionsllc.net, that is somewhat unfortunate: the very people that benefit (financially) the most from confusion and extended litigation are the ones entrusted to provide clarity. Not that it cannot be done, it is just that I am left feel the "fox and the hen-house" feeling.
Of course, the head of the Boston Bar's taskforce is a "family law" attorney as are 9 of the 10 people on the committee. As I have written on my webpage www.legalsolutionsllc.net, that is somewhat unfortunate: the very people that benefit (financially) the most from confusion and extended litigation are the ones entrusted to provide clarity. Not that it cannot be done, it is just that I am left feel the "fox and the hen-house" feeling.
Friday, August 13, 2010
Modifications
A mediation to agree on a modification of child support is scheduled for Monday.... These are always interesting in that the parties have been divorced a while, have a better understanding of how costs really play out and can sensibly talk about real needs.
www.legalsolutionsllc.net
Additionally, the great whammy of "changed circumstances" is thrown into the mix. Parties sometimes do not want to accept that life has moved on and that maybe "she" makes more money than "he" does -- with the result that the child support guidelines would apply differently.
http://www.legalsolutionsllc.net/Articles/The-Custody-Dance.shtml
And children grow older, too. Camps, cars, college ... these are expensive!! It takes open minds and a willingness to negotiate to avoid what can be a really messy visit to court.
www.legalsolutionsllc.net
Additionally, the great whammy of "changed circumstances" is thrown into the mix. Parties sometimes do not want to accept that life has moved on and that maybe "she" makes more money than "he" does -- with the result that the child support guidelines would apply differently.
http://www.legalsolutionsllc.net/Articles/The-Custody-Dance.shtml
And children grow older, too. Camps, cars, college ... these are expensive!! It takes open minds and a willingness to negotiate to avoid what can be a really messy visit to court.
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