{3:24 minutes to read} One question that I’m asked by clients fairly often is, “Do you think I should accept this?” Or “Is it good for me to do x, y or z?” I understand why a client would ask. But, like the question, “Do you think that this is fair?” it’s not one that a mediator can answer (Fair is in the Eye of the Beholder].

It certainly seems expedient, especially if the couple just wants it all to be over. The mediator understands the facts and the law and is certainly capable of answering the question. So, why not?

Impartiality

If a mediator were to tell one party what she thinks that person should do, one of the parties likely would question whether or not the mediator was acting in a way that showed partiality to the other, especially if the determination was in the other’s favor. One of the basic tenets of mediation is that both parties have to feel that the mediator is not taking either person’s side. That is awfully hard to achieve if giving your opinion as to an outcome.

Now that is very different from helping a client evaluate an option. That process is necessary for clients to make a good decision. However, the decision part is one with which a mediator cannot help.

Which leads to another fundamental principle of mediation...

Self-Determination

Mediation relies upon parties making their own decisions after evaluating the possible outcomes. The mediator should help them make informed and voluntary decisions by:

• Helping them understand their own and the other’s needs and interests;
• Letting them know the professionals from whom they can obtain information and advice to help them make decisions;
• Reminding them that mediation is a voluntary process and they do not have to reach a decision in mediation;
• Staying away from influencing the parties one way or another to settle.

It’s also important that the mediator is not so focused on a settlement that she loses sight of the value of the process itself. The reaching of an outcome is on the parties, and not on the mediator. If the mediator tells a party what she thinks that person should do to resolve a dispute, that puts the outcome above the process.

So, I tell clients up front that if they ask me a question like that, they will not get an answer. And if they still ask the question, I remind them why I will not answer. Usually when I do, I see the look of understanding in their eyes, because they chose this process for that very reason: They didn’t want others to make decisions for them.

{3:48 minutes to read} Unfortunately, people who are getting divorced are not exempt from downsizing, market fluctuations, facility closings, etc. which can lead to a period of unemployment. How can divorcing couples factor in this development as they work through separating their households and assets? How do they cope with this monumental change in their lives, on top of this monumental change in their lifestyle?

If one of you is unemployed, it may not be entirely within your power to resolve the situation. If the unemployment has been for an extended period of time, or if you are older in a younger or no longer relevant industry, your concerns may be magnified.

Unemployment and the financial strain that comes with it likely played a role in the dynamics of your relationship. Those emotions, coupled with the practical need to discuss support when one person’s income is unknown, can make a resolution difficult in an adversarial situation.

Since mediation is a dialogue in which you both hear and understand the other, this is what can happen in mediation.

Address the Emotional Underpinnings

As with any personal crisis, there are emotional issues/responses that should be brought into the open and addressed.

The person who is unemployed can describe what it feels like to struggle looking for a job and be rejected. To take on a caretaking role that may be unfamiliar. To feel that he or she let the family down. To have either an unrealistically optimistic or pessimistic outlook on securing employment.

The other person can explain how it feels to be in the scary and unfamiliar position of being the sole breadwinner. To feel that he or she is responsible for the entire family and needs to juggle the anxiety of that burden with trying to not have the other person feel bad.

Work Together on a Resolution

I’ve seen that once these emotions are out there and understood, it’s then possible to discuss the practical aspects and create an agreement incorporating flexible future circumstances:

While they are limited, if clients are willing to work together, there are options to be discussed.

They can agree to use assets or incur debt for a certain period of time and then agree upon a payback plan once employment is secured.

If the other is able to solely take care of the finances individually, he or she can do that for a limited period of time.

If it’s a desire for only a certain type of employment, they can give the unemployed person a period of time to find employment that he or she prefers, and then if that is not achieved, that person would have to accept another type of employment.

Or they can even stay together until it is financially feasible to separate.

While unemployment can add a level of complexity to a divorce process, mediation will allow a couple to discuss the problem with sensitivity and arrive at a workable solution.

{3:54 minutes to read} I met recently with a couple (I’ll call them “Mary” and “John”) to review their Separation Agreement. All went well, with a few minor changes agreed upon during our meeting. Then, towards the end of the Agreement, a provision came up for review at which John expressed surprise.

Mary and I were perplexed. This had not only been discussed fully at a previous session, but over the course of several months, had appeared in writing in:

• A summary of the meeting;
• A summary of the terms agreed upon; and
• 1st, 2nd and 3rd drafts of the Agreement.

This was not a “legalese” provision that could be misunderstood, but a pretty straightforward sentence. While the provision was unusual, the language clearly represented what the couple had agreed upon in the original meeting.

At our review meeting, Mary was not willing to budge, because the issue had been long agreed upon. John became more angry at what he believed to be unreasonable behavior by Mary. Ultimately, he stormed out of the room (complete with door slam) and said he was taking the Agreement to an attorney.

In the aftermath of this, I tried to figure out what had happened to cause John to now be so upset:

1. Did I fail to explain the effect of this provision?
   I am confident that the couple had been in agreement. I recall that, because it was an unusual provision, I took time to make sure that they both understood its effect.
2. Was John trying to prevent the agreement from going forward so that they wouldn’t be divorced?
   No. They had both moved on and there would be financial benefits for both once the agreement was signed.
3. Was John trying to gain an advantage at the last minute?
   I really don’t believe so. He had agreed to far more substantial terms than this.
4. Had he not read the agreement?
   No, because I received many comments back from him between the drafts. I was confident he had read the agreement.

Ultimately, I received an email a few weeks later informing me that they reached a compromise, and they both signed the Agreement.

In retrospect, I can see how this could happen.

• Because I stress that until an Agreement is signed, clients are not bound by the terms. There may be a tendency to put off focusing on a certain detail because it’s not applicable at the moment.
• Needless to say, we discuss very personal, upsetting and complex matters in mediation, and this can affect perception and lead to a lack of recognition.
• And most importantly, the reality of the situation can occasionally hit someone unexpectedly. No matter how many times that something was discussed and reviewed, the impact of making that commitment is powerful.

• Attorney consultation;
• Financial divorce professional consultation;
• The internet;
• Their friend, hairdresser, cousin, sister or co-worker .

Some are clearly less reliable than others.

In fact, it’s rare for me to see clients who haven’t received some version of what they believe their rights and obligations under the law to be. This information can take on enormous importance to them if they believe it is “the law,” especially if it benefits them. Needless to say, when the information is inaccurate or is based upon a totally different set of facts and circumstances, it can lead to a mindset that is not particularly helpful in mediation.

At my initial consultation, I will let clients know that I want them to have all of the information they need in order to make good decisions, which includes information as to what the law provides.

I also let them know that when I provide legal information, it is based upon a range of circumstances likely to happen if they choose to go to court, emphasizing “likely.” I let them know that their attorneys can apply the same statute to the same set of facts and reach different conclusions, which could possibly both be different from mine.

I often describe the course book from the Annual Update on the Law provided by MatLaw. Recently, I still had the book in my office, since I had just attended the lecture the day before. Instead of describing this volume, I was able to show the clients the 600+ pages in a very small font, describing New York family law cases that had been decided in the past year.

I also let them know that, in terms of what the law provides, many cases reach contradictory results, even though they are based upon the same legal standard. Within that mass of cases, each of their attorneys would be able to find a basis for their conflicting positions.

Given all of that, I only tell clients what I believe is a likely range of outcomes in court. This means that I cannot definitively tell them what they will get if they go to court, but neither can any attorney 100% guarantee the outcome of a court trial.

To avoid being one of those many cases reported in the MatLaw coursebook 2 or 3 years from now, a couple can make an agreement that they believe will be best for them and their family.

While they may ultimately be good for you, most resolutions:

• Losing weight;
• Getting more organized;
• Cleaning up the basement;
• Exercising;

include some level of unpleasantness. The outcomes are definitely positive, but the process to achieve them may be something you dread.

But, let me share a resolution that is both positive in outcome and in practice. This comes from Cheryl Brause, a gifted mindfulness and meditation teacher, who has assisted many in a practice that can help you face the many challenges of life. With her permission, I refer you to her latest blog: Joy On Demand.

{4:00 minutes to read} In New York, case law provides that when parents share equal physical custody of the children, the parent who earns more pays child support to the parent who earns less, based on the Child Support Standards Act.
If there is a great disparity between their incomes, that might make sense. But if there is less than a substantial difference and both parents need to maintain a household for the children, applying the statute can put one parent in financial peril.
Fortunately, in mediation, clients seek a resolution that will work for both of them. Here are some approaches to consider:

Substantially Equal Incomes

If both incomes are substantially equal, costs of housing, food and miscellaneous items could be paid by each parent. Then, the parents can decide what expenses they will share equally, such as clothing, extracurricular activities, tutoring, camp, work-related child care, medical expenses, medical insurance, and whatever other expenses the children incur that the parents think should be shared.

Small Disparity Between Incomes

If there is a small disparity between incomes, then the parties would need to discuss their budgets to see how each can maintain a suitable household. Once it is determined what one party would need from the other in order to pay expenses, including the pro rata cost of the shared expenses, the parties can agree upon an appropriate payment.

Sometimes, clients prefer that this payment not be called maintenance or child support. For some, these designations don’t seem to fit. Many choose to call it a housing supplement as a more accurate description.

Clients will also need to consider whether the need for that additional payment will continue or, just as with child support, change based upon future circumstances.

Substantial Disparity Between Incomes

If there is a substantial disparity between incomes, maintenance (spousal support) would be discussed. Also, since spousal maintenance may be needed for a shorter term than the support for children, child support would be discussed and determined as well.

It may, in fact, work out that payment of child support by the guidelines makes sense for them. In this scenario, the parent who receives child support pays for all of the clothing and other agreed upon expenses rather than the parties paying them equally. Another option would be to decide to make a lesser child support payment and then share the children’s expenses pro rata.

Payment Options

There are several options as to how agreed-upon expenses can be covered:

1. Use a joint credit card. Each party then pays his/her share at the end of the month.
2. Create a shared bank account from which each party is reimbursed for the expenses they have paid for the children.
3. Use a shared spreadsheet on which each parent accounts for the payments they made and then is reimbursed by the other.

I also discuss building periodic check-ins for both the parenting plan and support payments, especially in cases of equal parenting. Because clients need to work so closely together and be especially cognizant of how the plan is working for the children, they will want to review their plan and support on a regular basis.

{3:18 minutes to read} After my initial mediation training, I developed a sense of why I thought clients would choose to mediate their divorce. Since I was so invigorated by the knowledge of this amazing process, I assumed they would choose to mediate because they wanted to engage in a process in which they could learn how to communicate their interests to each other and then brainstorm creative resolutions to meet those interests in a collaborative and non-adversarial setting.

When I actually began working with my own clients, needless to say, I was a little disappointed to learn that the primary reason the vast majority of my clients gave for mediating their divorce was to lessen their costs. Not that I minimized the fact that cost is a very legitimate reason to mediate, but I unrealistically expected that clients would recite those same lofty reasons as caused me to choose to no longer practice in an adversarial setting and become a mediator.

Of course, most clients, in addition to reduced costs, would also provide some of these reasons as to why they chose to mediate:

• They wanted a speedier process.
• They didn’t want to deal with matrimonial lawyers.
• They wanted to make their own decisions and exercise control over the process.
• They wanted to avoid conflict now and in the future.
• And, most importantly, they wanted to minimize the harm to their relationship and to their family.

I also learned their reason(s) depended on when I asked the question. At an initial consultation or at the beginning of the process, cost might be one very significant, if not the sole, motivation. That makes sense, because without really understanding how mediation works, it may be difficult to understand the benefits, like the:

• Informality of the process;
• Desire to focus on the future rather than on blame for past actions;
• Desire to honor their past lives and shared time together; and
• Wish to preserve goodwill and to understand what was important to the other and why.

And while the motivation to mediate may initially be monetary, it can also change and develop over the process as clients understand the full benefits.

Whatever the particular motivations of the couple or whenever the question of motivation arises in the process, they should be discussed initially and throughout the mediation. When a difficult conflict arises and the parties are ready to give up, a reminder from the mediator as to why they are there and what they hoped to achieve can help get past that hurdle.

{3:54 minutes to read} Since I write so often about the benefits of mediation, I think it’s time that I acknowledge something I often share with clients at the initial consultation.

After I have explained the basics of mediation, I say that I think mediation can be a hard thing to do and commend them for making that choice. And while I firmly believe that it is the best option to resolve conflict, I’ll admit it’s still not an easy process.

What makes it hard?

1. You are spending a good deal of time one on one with the other person.

3. You have to make all the decisions.

Even though I do all I can during the mediation to make sure that both partners have all of the support they need to make good decisions, they are the decision makers. You can’t ask the mediator to tell you which option to choose, and while you can get advice from other professionals, the responsibility for the final decision is up to you.

Why is that hard work worth it?

1. You are spending a good deal of time one on one with the other person.

When the parties are in the same room, it’s much easier to resolve a conflict since they each know the levels of their acceptability as to an outcome. More importantly, after hearing the other’s point of view, you know the level of compromise you may choose. Attorneys negotiating without the presence of clients means a lot of time spent going back and forth between them before a settlement is made. And, don’t forget: that time is costing you money.

2. You are doing quite a bit of work.

Doing a budget and learning about your assets and liabilities is a good thing. If you were not the one handling the finances during your marriage, you may not have a firm understanding of the financial situation. This enables you to educate yourself about what will be a very important aspect of your life moving forward. It also forces you to set priorities and decide what future financial circumstances are most important to you and how you are going to achieve them.

3. You get to make the decisions.

Need I say more on why it’s a benefit that you decide the important aspects of your future?

So, like many things in life, mediation is not always a pleasant process to go through in order to achieve the outcome that you seek, but it is well worth the effort.

{3.36 minutes to read} I try to avoid jargon when working with clients. When I’m not successful, it’s easy to spot by the looks on clients’ faces when they have no idea what I’m talking about.

One of these is the phrase “add-ons to child support,” which I tend to use before offering an explanation. This is a very common phrase to professionals who work with separating parents. For the parents themselves, not so much.

The basic child support payment represents payment for the child’s expenses for food, shelter, clothing and miscellaneous items. In the world of child support in New York, add-ons refer to the payments that a parent must or may be ordered to make in addition to the basic child support payment under the Child Support Standards Act (“CSSA”). They are:

• Health insurance premiums for the child, and unreimbursed healthcare expenses;
• Work related child care expenses so that a parent can work; and
• Educational expenses.

The add-ons are variable, and some, such as child care, will decrease as a child attends school, and terminate at a certain age. Others, such as educational expenses (private school or college), will not come into play until a child is older or may not be applicable at all. This is why these irregular items are not computed as part of basic child support.

To the statutory list, parents often discuss other expenses to be shared between them, such as extracurricular expenses, religious education expenses, birthday parties and gifts, tutoring, school trips, tours, and camp.

• How much does each party’s budget leave for add-ons, especially when basing child support on a higher income than the cap of combined income under the statute?
• A pro rata sharing requires some degree of record keeping, so if parties are reluctant to do that, they may prefer that one pays one expense and the other pays another expense.
• Even if there is a disparity between incomes, an equal sharing may be called for because of other factors, such as the higher income parent paying for marital debt.
• If one parent has a much higher income, he or she may be able or more willing to pay for more extracurricular activities than the other could afford, so perhaps a limit of extracurricular activities would be in order or the more affluent parent will pay all or most of those expenses.
• Use of a state school tuition rate to cap a contribution to college expenses that a parent would be required to make.

Once again, parents themselves tend to know what is best for their family and their financial circumstances than what a statute may provide. Mediation allows parents to make decisions based on that knowledge rather than the statute’s guidelines.

{3:42 minutes to read} A couple of years ago, I was a member of a panel discussion regarding client intake in mediation and collaborative matters. The audience was primarily attorneys, and I mentioned that I provided an initial consultation at no charge. A matrimonial attorney, who probably had just a few more years experience than I, was incredulous. She said that she hadn’t given a free consultation since she was a “baby attorney.”

I guess I should have been insulted, but I wasn’t. I explained that when I represented individual clients in a matrimonial matter, I always billed for a consultation. At that meeting, we discussed substantive matters, and I provided valuable information over the course of a 1½- to 2-hour consultation.

When I started my mediation practice, on the other hand, I decided that I would provide an initial consultation at no charge for a process discussion of about a ½ hour. I continue to provide that service free-of-charge, because I think it is important to the clients, and it helps me in my practice. Here are some reasons why:

Most potential clients don’t know what mediation is all about.

I would say that the vast majority of phone calls I receive are from people who have heard of mediation and done some research online, but really don’t know how it works. In terms of furthering the practice of mediation, I think it’s good for as many people as possible to know the reality of what mediation entails and to get that information from an experienced mediator.

It’s an easy first step.

Even if potential clients know what mediation is and how it works, they may not be sure that it’s right for them. This consultation is an easy, no-commitment way to determine if mediation will be the best option for them and their children. Later, if they choose to mediate, they will have a level of buy-in from the knowledge they gained in the consultation that can help them through difficult conflicts.

It gives them an introduction to me, and me an introduction to them.

I can’t imagine deciding that you want to mediate with someone with whom you have only had a phone conversation, especially since it is likely that only one client would have made that call. It also provides me an opportunity to consider if mediation is appropriate for them and to get a feel for both parties’ level of commitment to and comfort with the process.

Before my very first meeting with potential mediation clients, I wrote a script which I narrowed down to an outline and kept under my notepad, as if I could surreptitiously glance at it to make sure I covered all the bases. Needless to say, I’ve become much more comfortable in these consultations since then.

But, the main reason I offer the free consultation to potential clients: I enjoy being able to share my knowledge and experience about a process that I truly believe is the best way for couples to obtain a separation or divorce.