{7 minutes to read} As is the same for all of us now, we are struggling to maintain a sense of calm, not just for ourselves but for our families. Clearly, this would be the perfect time to meditate, but the craziness of the moment has disrupted my routine and my practice—making the thing that would help feel just too hard to do right now.
Thankfully, my meditation teacher, Cheryl Brause, has written this blog providing practical advice to help keep all of us centered even if we don’t feel like meditating. With her permission, I share her timely and constructive post.
Mediation may not be appropriate for everybody but could be the right process for you. Unfortunately, many people dismiss it out of hand, based upon some misconceptions about what mediation is or isn’t. This video tries to dispel some of the most common myths to help you decide if mediation is right for you.
Mediating Trusts and Estate Disputes
{4 minutes to read} Are all family disputes the same? Of course not. Divorce mediation is different from mediation involving the contest or interpretation of the provisions of a Will or Trust Agreement. But clearly, they have similarities:
Ongoing Relationships
While some familial relationships may have always been troubled, it’s likely that at some time, the parties probably got along well. And they may need to continue to get along for the sake of attending extended family gatherings, care of a surviving parent, etc., just as ex-spouses need to get along for the sake of their children.
Broken Trust
Because of the special relationship they may have shared, when trust is broken it’s devastating. A sibling who accuses another sibling of overreaching and/or taking advantage of a parent to gain a larger bequest results in not only the accuser feeling betrayed but the accused feeling resentful for being accused.
Need to Be Heard
While all parties to any dispute have a need to be heard and understood, the strong emotions that are present in a family dispute make this need paramount. It’s a need that is unlikely to be met fully without a dialogue occuring in a safe setting with a trained professional.
For these reasons, mediation is as beneficial for estate and trust disputes as it is in a divorce. And with the adoption of presumptive mediation in New York Courts, parties may have the opportunity to mediate their dispute.
I serve on the Roster of Mediators for Westchester Matrimonial and Surrogate’s Courts. I have found the Surrogate’s Court matters I’ve mediated to be well suited to the process and helpful to the parties, even if not all have resulted in a full settlement. The benefits include:
An increased likelihood of keeping an ongoing familial relationship, including among the children of the siblings in conflict. The chances of this are greater if there is an outcome that is agreed upon versus a win/lose outcome that would be inevitable in a judicial resolution.
The strong emotions that exist because of a breach of trust are better addressed by a trained mediator than through a litigation process that tends to inflame rather than calm or resolve those emotions.
Most importantly, the opportunity to be heard and understood is more likely to present itself in mediation, which in turn can lead to a resolution that addresses the parties’ needs and interests.
As helpful as I have found the court-ordered mediation process to be, I think it would be even more beneficial to mediate estate issues as a first option, just as I recommend mediation as a first option in divorce. This can prevent the positional posture and hardened points of view that occur in an adversarial process.
Because of the presumptive mediation mandate, trusts and estate attorneys are more aware of the benefits of mediation. Many have taken mediation training themselves. So, if you are involved in a contested estate, you can speak to your attorney about whether it would be possible to pursue mediation before filing a contested action.
Equitable Distribution: How It Works In Mediation [VIDEO]
In this video, the last of the series on Equitable Distribution, we look at the implications of the statute to parties in mediation. It is important for clients to know what the law provides, and what is likely to happen in Court, whether they are in mediation or not. Then, when in mediation, they can make informed decisions as to whether to apply or waive the provisions of Equitable Distribution.
Equitable Distribution — What is Marital Property? [VIDEO]
In my last video, I mentioned marital property as a part of the discussion of Equitable Distribution. In this video, I want to explain the difference between assets that are separate property and those that are considered marital property.
Equitable Distribution — What Is Equitable? [VIDEO]
There are 14 factors that are used by courts and attorneys to determine an equitable distribution of marital assets. In mediation, the couple makes these determinations together. Taking the time to review the factors, however, you may find one that resonates with you, and allows you to make a proposal to your spouse that will take into consideration its relevance to you and explain why you think you should get the property distribution that you are proposing in your mediation.
But....
{4 minutes to read} When I’m being mindful of what I’m saying, I can stop myself from using the word “but” after I’ve just apologized to someone. I recognize how off-putting that can be to the person to whom I’ve just apologized, and that it effectively negates everything that I said before the but.
When I really don’t believe I’m at fault, though, I may very well end up with an apology followed by “but I didn’t mean to do that because of......” Then I belatedly realize that I gave a non-apology apology and if I really intended to apologize, I will need to do it all over again — without any excuses.
So, I know from my own experience that it’s very hard to avoid using but, especially when strong emotions are at play. It’s a word that comes so naturally when you feel threatened and defensive.
I also know from my professional experience that when a client uses but in mediation, what is said after the but is all that the other person focuses on. That one little word can not only obliterate what had been previously said, but if you use but regularly, the other person may not even listen to what you say initially in anticipation of the but.
By way of example, I had a client recently who attempted to take responsibility for past behavior that she knew was hurtful to her partner. I could see that her partner was receptive to the words being said and his eyes began to show understanding. Then, came the but followed by an excuse for the behavior for which she was apologizing. At that point, the partner reacted even more negatively than before the apology. It would have been more productive had she not said anything at all.
The better approach — if you sincerely intend to apologize — is to just stop after the apology. If you can’t do that, then consider whether you are truly ready to apologize.
The danger of but in mediation isn’t limited to non-apologies for past behavior. It can also serve as an excuse for future behavior, as in “I agree that it would be good for our daughter to join the dance club, but I can’t afford it.” A better approach in mediation would be “I agree that it would be good for our daughter to join the dance club. Now, how can we pay for it?”
It’s not off-putting.
It can lead to discussion.
It very well may result in both of you acknowledging that it’s not affordable right now without resenting one another.
Eliminating the use of but can be a tall order, so a first step can be to recognize it in retrospect when you think about how a past conversation went. If it makes sense, you can try a redo, and if not, you can learn from it. Being in the moment and conscious of what you’re saying takes practice, and you will find that it is well worth the effort.
Why Working With a Financial Neutral Can Help Your Mediation
{4 minutes to read} In other posts, I’ve often touted the benefits of working with a financial professional, either together or separately, during a couple’s divorce mediation. In this post, I want to summarize the circumstances under which I think a mediation would progress most easily, and that is if both spouses worked with a financial professional who acts as a neutral.
While the training and expertise of the financial professionals would be the same, a financial professional working as a neutral is different from a financial professional who only works with one party and only supports that person’s interests. The latter situation might arise because one party feels that the other has a superior knowledge or acumen for financial matters, and that the less knowledgeable party needs more education or help than the other. In such a case, the financial professional is an advocate for that party and definitely should not be considered a neutral, any more than either party’s attorney would be considered a neutral.
A financial neutral in mediation is more akin to the role of a financial neutral in the interdisciplinary collaborative practice model. They would work with both parties and ultimately present complicated financial concepts in a simple, easy-to-understand fashion.
Here are some other reasons why working with a financial neutral is a good idea:
1. They Are More Cost-Effective.
Although I do enjoy working on my clients’ budgets and using Family Law Software, it’s not always the most cost-effective way for clients to gather information and make a budget. If budgeting is not a comfortable process for either of you, a financial neutral can take your expenses, question you about them, organize them, and prepare an accurate budget at a cost typically lower than the mediator’s.
2. They Can Prepare Budgets More Thoroughly.
Since this is their area of expertise, a financial neutral will be much more proficient in gathering the financial data necessary, interpreting different scenarios, and ensuring that the budget precisely reflects your current expenses. In addition, they can accurately depict what will happen in different scenarios, such as a budget if your home is sold and you rent; a budget if you sell your home and buy a new one, etc. They can also explain the tax consequences of the different options so you can make more informed decisions.
3. They Demonstrate That Splitting the Difference Doesn’t Always Work.
Sometimes people think that if there is a budget deficit, they should just split the difference, but that can result in neither party meeting their budgets. Instead, a financial neutral may be able to suggest ways that you can satisfy debt, decrease costs or otherwise make it feasible for you both to live separately and pay your expenses.
4. They Can Help Determine Income.
If one of you is self-employed, the financial neutral can help you agree upon what income, based upon your actual financial reality, should be used for the purposes of budgeting and calculating support. If you are working with someone who is advocating for one party, it can be more difficult to arrive at an agreeable number, hence the advisability of using a financial neutral.
If you determine that a financial neutral would be well worth the cost, your mediator can suggest professionals who can fulfill this role.
Why You Should Mediate Your Prenuptial Agreement
{4 minutes to read} You and your fiancé have discussed the terms that you would want in your prenuptial agreement. You seem to be in agreement, so you feel that there is nothing to mediate and don’t see the need for a mediator when you could just have your lawyer draft the agreement and your fiancé can have an attorney review it. So, why involve a third professional and incur an additional fee when nothing is really in dispute?
You May Not Have Addressed Everything
A prenuptial agreement (prenup) can be broad or limited, but in order to know that you have considered everything you may want to include, you need to know everything that could be addressed and how those situations would be handled under the law without your prenup.
Without a Mediator:
Your attorney would let you know you forgot to discuss “x” issue and then will include “x,” likely in a manner that benefits you. In reading the agreement drafted by your attorney, your fiancé could feel blind-sided because something was included that was not discussed, even if he or she agrees with “x.”
Even if you speak to your fiancé before “x” is inserted, you may innocently start off with “my attorney said...” which can be a little off-putting to the other person and places you in a positional framework, even if that is not your intention.
With a Mediator:
Your mediator will objectively raise all of the terms that could be provided for in a prenup, and you both will address your feelings and concerns about including those provisions — or not. This will include a discussion as to why something is important to the other, the understanding of which is vital to reaching an agreement. It also can lead to other viable options that neither of you considered.
Drafting Misunderstandings
Your attorney’s job is to represent your interests only, so if there is some leeway when drafting the agreement to use language that is more favorable to you, that is the language that would be used. While you may not even be aware of that drafting choice, your fiance’s attorney would certainly recognize such a choice of language and point that out to your fiancé. While you can explain that you didn’t direct your attorney to do anything like that, it would be best to avoid that misunderstanding and those hurt feelings with a more impartial drafting.
Avoid Attorneys Dictating the Process
If there is no mediator and there are disagreements between you on terms, the only way those disagreements can be addressed would be through the attorneys. The attorneys will be sending letters or emails back and forth, or having discussions over the phone without the two of you being present, all of which will be billable. As important as client involvement is in a separation, it is even more important in the discussion of a prenup when you are preserving — rather than dissolving — your relationship.
An adversarial process can place a strain on your relationship needlessly. You will still have an attorney review the agreement you made in mediation, but the nature of that is much different than having the attorney negotiate terms on your behalf.
A word to the wise — keep the misunderstandings and positions to a minimum and create your prenup with a mediator.
Don’t Be Afraid of a Prenup [VIDEO]
Prenups illicit very negative reactions, but there are a lot of valid reasons why someone would want a prenup and it doesn't have to mean that they think that your marriage is doomed to fail. You are going to want your marriage to be a collaboration and mediation is a collaborative way to create a prenuptial agreement.
