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.
Monday, August 9, 2010
Child Support Blog
Not meant to be the end-all analysis, but as I write on my website www.legalsolutionsllc.net, it can be rather confusing.
I have a few (ex)couples recently contact me about child support in the Commonwealth. People seem to want to fight about custody, when the true goal is the amount of child support the parties want to receive or pay. Simply put, that is a dreadful way to approach what is a far more complex situation. I wrote an article I called "The Custody Dance" http://www.legalsolutionsllc.net/Articles/The-Custody-Dance.shtml in which I outlined some of the unintended consequences.
There are so many moving parts to the decision of how custody is to be shaped that a simple desire to "gain an advantage" is shallow and short-sighted. If one part wants to truly disengage and leave the raising of their children to another person -- the Commonwealth's new child support guidelines are designed to compensate for some of the additional costs associated with that.
But rarely is that the case. Parents want to participate in the future of their children, but too often one party is fixated on "having it their way" and that also means having the other party pay for it too. A classic situation is one party not wanting to use the parents or relatives of the other party as daycare or babysitters -- in essence, they want to force the other party into paying for 3rd party babysitting, or a part of it. The reasons are varied ... "not suitable", "inconvenient" ... but often it is really to cut ties with one family and simple dislike. The Courts, however, see this in a more even-handed way: there are two parents, each with the right to participate, and those parties come with their families ... the child's larger family. Note that the Commonwealth looks to the rights and interests of the child, not one parent's likes or dislikes. Absent some serious circumstances such as substance abuse, violence, lack of care or supervision ... just because one parent doesn't like or approve of the other's family doesn't mean he or she can cut the children off from them.
And so, people go to Court, get GALs appointed, spend lots and lots of money, have lawyers spend even more ... only to wind up where they would be if only they were more reasonable. And in the meantime, dirty laundry has been thoroughly aired, reputations damaged, lawyers enriched, friends alienated ... for nothing more than spite.
Mediate. Don't litigate.
I have a few (ex)couples recently contact me about child support in the Commonwealth. People seem to want to fight about custody, when the true goal is the amount of child support the parties want to receive or pay. Simply put, that is a dreadful way to approach what is a far more complex situation. I wrote an article I called "The Custody Dance" http://www.legalsolutionsllc.net/Articles/The-Custody-Dance.shtml in which I outlined some of the unintended consequences.
There are so many moving parts to the decision of how custody is to be shaped that a simple desire to "gain an advantage" is shallow and short-sighted. If one part wants to truly disengage and leave the raising of their children to another person -- the Commonwealth's new child support guidelines are designed to compensate for some of the additional costs associated with that.
But rarely is that the case. Parents want to participate in the future of their children, but too often one party is fixated on "having it their way" and that also means having the other party pay for it too. A classic situation is one party not wanting to use the parents or relatives of the other party as daycare or babysitters -- in essence, they want to force the other party into paying for 3rd party babysitting, or a part of it. The reasons are varied ... "not suitable", "inconvenient" ... but often it is really to cut ties with one family and simple dislike. The Courts, however, see this in a more even-handed way: there are two parents, each with the right to participate, and those parties come with their families ... the child's larger family. Note that the Commonwealth looks to the rights and interests of the child, not one parent's likes or dislikes. Absent some serious circumstances such as substance abuse, violence, lack of care or supervision ... just because one parent doesn't like or approve of the other's family doesn't mean he or she can cut the children off from them.
And so, people go to Court, get GALs appointed, spend lots and lots of money, have lawyers spend even more ... only to wind up where they would be if only they were more reasonable. And in the meantime, dirty laundry has been thoroughly aired, reputations damaged, lawyers enriched, friends alienated ... for nothing more than spite.
Mediate. Don't litigate.
Wednesday, July 28, 2010
The problem is education
All too often when someone decides to get a divorce, the first thing that they do is to hire a lawyer. In so doing, that person has embarked on an extremely expensive process that is both time-consuming and depleting to the soul.
There is an alternative: mediation. I have informally polled family law attorneys that also mediate -- representing literally thousands of divorces -- and the uniform response is that a mediated divorce winds up with the couple having the same asset distribution +/- 5%. That is, people can spend hundreds of thousands of dollars litigating to get to where they would probably have ended up in mediation.
Of course, there is always the outlier -- where a party is either so disconnected from reality, or so bent on revenge that mediation becomes impossible. And even in those circumstances the parties may be able to engage in the collaborative process. Parties in custody matters can get to a place where they'd rather let the judge decide than "give in" to their ex-spouse -- but given rational people, and people willing to recognize that there is a considerable body of precedent out there, mediation can provide the appropriate forum.
But once you board that litigation train -- and it is a gravy train for the lawyers involved -- it is extremely hard to get off. However, people do decide to abandon their litigation and try mediation. I estimate that about 1/4 of my clients are in that precise situation: tired out and wanting to finish the divorce. In deciding to convert from a 1B filing to a 1A, they suddenly find themselves with a hearing date on the divorce months earlier ... even years earlier, depending on the lawyers and parties.
Lawyers in a divorce face an unusual ethical position: the more trouble they stir in the divorce, the more money they make. It is inescapable. Suddenly, multiple hearings on discovery, appointment of guardians, alimony ... seem to make sense. I have written about this in articles on my website: www.legalsolutionsllc.net and it takes an extremely strong person to say, "no, lets try and negotiate this" when the lawyer is telling you that you need to fight. http://www.legalsolutionsllc.net/Articles/Inherent-Conflict-A-Case-for-Mediation.shtml. Furthermore, parties have all heard about so-and-so who was a bulldog "for a friend they know." Sounds good, right?
In practice, it is about the most personally destructive thing imaginable ... and even worse for any children of the marriage.
There is an alternative: mediation. I have informally polled family law attorneys that also mediate -- representing literally thousands of divorces -- and the uniform response is that a mediated divorce winds up with the couple having the same asset distribution +/- 5%. That is, people can spend hundreds of thousands of dollars litigating to get to where they would probably have ended up in mediation.
Of course, there is always the outlier -- where a party is either so disconnected from reality, or so bent on revenge that mediation becomes impossible. And even in those circumstances the parties may be able to engage in the collaborative process. Parties in custody matters can get to a place where they'd rather let the judge decide than "give in" to their ex-spouse -- but given rational people, and people willing to recognize that there is a considerable body of precedent out there, mediation can provide the appropriate forum.
But once you board that litigation train -- and it is a gravy train for the lawyers involved -- it is extremely hard to get off. However, people do decide to abandon their litigation and try mediation. I estimate that about 1/4 of my clients are in that precise situation: tired out and wanting to finish the divorce. In deciding to convert from a 1B filing to a 1A, they suddenly find themselves with a hearing date on the divorce months earlier ... even years earlier, depending on the lawyers and parties.
Lawyers in a divorce face an unusual ethical position: the more trouble they stir in the divorce, the more money they make. It is inescapable. Suddenly, multiple hearings on discovery, appointment of guardians, alimony ... seem to make sense. I have written about this in articles on my website: www.legalsolutionsllc.net and it takes an extremely strong person to say, "no, lets try and negotiate this" when the lawyer is telling you that you need to fight. http://www.legalsolutionsllc.net/Articles/Inherent-Conflict-A-Case-for-Mediation.shtml. Furthermore, parties have all heard about so-and-so who was a bulldog "for a friend they know." Sounds good, right?
In practice, it is about the most personally destructive thing imaginable ... and even worse for any children of the marriage.
Tuesday, July 27, 2010
Welcome to Mediation ... blog
This blog will center on experiences and issues relevant to my mediation practice in Boston. For your reference, my website can be found at www.legalsolutionsllc.net
Looking forwards to hearing from you.
Looking forwards to hearing from you.
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