{3:12 minutes to read} My first ritual of the fall entails my husband and I getting a flu shot, going out for brunch, and then going shopping for Halloween.

Just in case there is an area of the yard or a surface in the house that is not already adorned with Halloween decor, we are always on the lookout for interesting pieces. At this point we seek out things that are unique, clever, or attractive, like some vintage pieces or Day of the Dead figurines.

While we both rule out anything that is too “cutesy” like smiling pumpkins or ghosts, I also draw the line on things that are too creepy. My bottom line is always “nothing that would scare small children, or me.” So, legs meant to be the Wicked Witch of the West with Dorothy’s red shoes coming out from the side of the house like the house fell down on her is okay. Severed hands coming up out of the front lawn are a definite no.

This year, however, I saw quite a few items on a whole other level. They were extreme and gory, just for the sake of being extreme and gory.

• A disturbing and graphic zombie toddler, holding a bloody baby doll.
• A touch-activated zombie head, munching on a rat, which is waving its tail frantically and emitting a squealing noise as it is being devoured.
• A noise activated figure of an obviously dead, ghost-like young girl in bloody pajamas, eerily crying out “Momma.”

The fact that these horrific pieces were being displayed in stores frequented by children was mind boggling to me. By comparison, the Freddie Kruger and Jason characterizations from years past are quaint. These newer “decorations” are just so gross that I find it hard to believe that they are acceptable for retail.

I guess that now to be shocking and get attention means that you do have to be ever more extreme. Like some of the comments that are posted online, some think that you have to go beyond acceptable to be noticed. Or, sadly, like some of the outrageous things said by politicians and their surrogates.

When I litigated, I saw that extreme positions could be rewarded. I’m glad that I now work in a profession in which parties don’t have to be more unreasonable and more extreme than the other to get what they want. I prefer to work with people who are trying to understand the other and work towards a resolution that meets both of their interests.

{3:42 minutes to read} Dog training was never a strong suit for my husband or me, but our new dog, Toby, proved to be in desperate need of some consistent direction and attention. We hired a trainer to come to the house. I also dug out all of our training books and searched online for new techniques when some of the things we were doing didn’t seem to suit Toby or me.

One of the biggest challenges was walking him. We live in a pretty quiet neighborhood, but any sound, a car or, heaven forbid, child on a tricycle, made Toby so skittish. Once he got past his zone of comfort (two houses down the block), he began to pull back toward home and would bark like crazy at pretty much everything.

I was told that walking with a halter harness around his nose would help keep him calm and at my side, but he hated it so much that I couldn’t use it. He continued to pull and not stay along my left side, as I had been instructed was the proper way to walk a dog.

Finally, I came upon a website that resounded for me (and ultimately Toby). It provided that if your dog doesn’t like walking, maybe it’s because it isn’t fun for him. It suggested that unless you are entering a dog show, let your dog wander, run and sniff as he wants, and use constant treats and praise to acknowledge his doing a good job for literally everything he does correctly.

So, armed with tiny dog treats, we set out. As soon as we reached the end of his comfort zone, I encouraged him with a treat and praised him, letting him walk wherever he wanted. He did a little run on the grass alongside me and got another treat and praise. When he got scared and barked or if he pulled me, I stopped; and when he calmed down, I gave another treat and praise, and so it went. Little by little, he began walking with me like the other people walking with their dogs that I always envied. And he enjoyed it.

The treats have stopped, but he continues to receive an energetic "good boy” in acknowledgment of everything he does correctly.

Acknowledgment works with people, too. Think about the smile that comes to someone’s face when you tell them they did a good job and that you appreciate their efforts.

I see it with my clients as well. In the midst of a contentious mediation, there is nothing more striking than when a client says with sincerity, “He is a good father,” or “We’ve been able to save so much because she is so on top of our finances.”

We all want to be acknowledged for our efforts. It makes a powerful difference to the person hearing it, especially when an acknowledgment arises in the face of conflict.

{3:54 minutes to read} When I litigated, there were two times of year when I would receive quite a few calls from parents questioning a current or proposed parenting plan. The first was in December and centered around sharing the children during the holidays. The other, as the topic of this post indicates, was in September and centered around issues raised by the return to school.

Just like those unhappy children who have to leave the freedom of summer for the restriction of a classroom, there are unhappy parents who feel that access while school is in session should be different from access during the summer.

Most of the disputes I saw when I represented an individual client, and continue to see in my mediation practice, revolve around two issues in terms of overnight visits:

1. During the school year, the primary residential parent strongly argues in favor of stability, which to them dictates that the child always stays in one house on school nights. That way the child has a home-base, will always have what is needed for school in the morning, and that parent can better ensure that homework is done. To them, going back and forth during the school week would be detrimental to the child excelling in school. The other parent will argue that spending quality time with both parents trumps stability and that there is no reason why both parents couldn’t ensure that a child does homework and has all that is necessary to excel in school. 
2. The other issue occurs if the non-primary residential parent lives a distance away. Then the primary residential parent argues that it will be hard to get the children to school on time or that the child would need to wake up too early.The other parent’s view is that the child can nap on the trip and that again, having a consistent relationship of overnights with both parents warrants this minor inconvenience once a week.

While the conflict may be the same, the approach at a resolution is markedly different in a mediation as opposed to an adversarial process. The standard in both is the best interests of the child, but that can be more difficult to discern in an adversarial process.

In a court proceeding, the parent seeking the access may accuse the other of trying to withhold the children. The primary residential parent may accuse the other of being a bad parent who doesn’t care about the well being of the children. Not a great way to reach a determination that will work best for that family.

In a mediation, we keep the discussion on the child and not so much on the parent. Why is it important for the child to have that stability of a home-base? Why is it important for the child to have the continuity of contact with the non-primary residential parent?

When we speak in those terms, it is much easier to reach a resolution that is flexible and looks at both parents’ considerations about what is best for the children in an equal light.

{2:36 minutes to read} I am one of those people who enjoys the changing of the seasons, even when it means that summer is over.

However, I’m not one of those people who feel that summer is over on the 5th of July. Even if we measure summer as Memorial Day to Labor Day, there are still two full months of summer to enjoy after the 4th of July. Why not savor these two months when it’s still 90 degrees in the shade instead of focusing on winter coming?

Conversely, people who tend to see summer as over on July 5th don’t tend to see winter as being over January 2nd. In fact, it’s much easier for them to become mired in the inconveniences of snow and ice. They may have a tendency to dwell on what they perceive as negative periods that they have to endure and not recognize that there is a light at the end of the tunnel—and that at some point, they will get there.

I see this dynamic with certain clients who are unable to envision a future. I wish there were an easy way for them to recognize that all of the feelings they are experiencing, such as anger, sadness, fear and doubt, are likely to pass in time.

When in the negotiation phase of a divorce, it may seem that they will never be done with it. It is the first thing on their minds when they wake up, and usually the last thing they think about as they are falling asleep. It generally takes over any unoccupied moment of the day, or when they are involved in mundane tasks.

Once the agreement is signed, clients have told me that it is as if a weight has been lifted off their shoulders. Not that life gets suddenly easier, but their focus can now be on their life going forward in a different, but hopefully less stressful, way.

In mediation, because the focus is always on the future rather than past grievances, clients are able to get through the negotiation morass more quickly. They are able to make terms in an agreement that will make moving forward easier, and the “different life” one they can manage.

{3:30 minutes to read} When I began practicing family law, one of the first lessons I learned was that clients do not consider all assets the same. The one asset that consistently holds a very special place in the heart of a client is a pension.

Clients express feeling a different sense of entitlement to their pension because:

• They performed at a job where their lives, health and safety were placed in jeopardy;
• They may have taken less in salary for the assurance of a pension in retirement;
• They worked very hard for this particular asset, and the other spouse did not.

Whatever the reason, it is difficult for them to consider sharing their pension.

Objectively, the pension holder understands that if they made contributions to this benefit and the employer matched those contributions, such as in a 401(k), there is no question that the account would be a marital asset to be shared with their spouse.

They also understand that if they were at a job where they actually earned more in salary because there was no pension benefit provided by the employer, and that salary was then accumulated in other assets, that, too, would be shared equally with their spouse.

On an emotional level, however, it just feels profoundly different to be told you have to share a pension versus sharing a 401(k) or IRA account.

There are ways to address this in mediation. The first step is to have a discussion as to the importance of the pension to the party so that their reasoning and beliefs are on the table. It is also good to discuss the expectations that the other spouse had for sharing in those pension benefits when they both retired and choices that he or she may have made based on that expectation.

In terms of the distribution, the most even-handed way to divide a pension would be to enter an order for the parties to share the future payments when the pension holder retires. But it is the parties’ asset, and the most even-handed division may not work for them. They should decide how best to divide it, and they may consider the following:

• The pros and cons of getting a present value of the pension and possibly offsetting that against another asset.
• The pros and cons of life insurance rather than taking a survivor benefit.
• The availability of a lower-cost option for the continuation of pension benefits such as a 5- or 10-year guarantee.
• What else the pension holder may be willing to give up to retain the pension.

These types of discussions, at the very least, permit each party to be heard and understood. Hopefully, it will also lead to more creative resolutions on this sometimes sensitive issue.

{3:48 minutes to read} Even before the enactment of New York’s post-divorce maintenance statute, most mediators and attorneys worked with an informal but commonly accepted formula for determining the duration of maintenance based upon the length of the marriage. The longer the marriage, the longer the term of maintenance.

The new statute now provides an advisory schedule, also based on the length of the marriage, for the court to consider in determining the term of maintenance. Paradoxically, however, a longer-term marriage, which would typically result in a longer term of support, may in fact do just the opposite. Why? Because the paying spouse may be likely to retire before the end of the term.

In court, the retirement of the paying spouse, if known, could be considered in deciding the duration of maintenance. If it is not known at that time, the paying spouse would need to go back to court to seek a modification if he/she wishes to decrease the length of the support.

In mediation, you can have a discussion that takes into consideration all of the relevant factors without anyone having to petition the court, such as:

• The age and health of both parties;
• The likelihood that the paying spouse will work beyond a typical retirement age;
• The parties’ retirement plans before they decided to separate, and whether they need to be revised after a separation.

A balance needs to be struck between:
-- The need of the spouse receiving support to have sufficient income; and
-- The desire of the spouse paying support to retire at a reasonable age and reap the benefits of a long career.

Once again, an arbitrary formula in a statute may or may not apply to your particular situation. For example, a construction worker is not likely to be able to work past the age of 70, but a college professor certainly might. A police officer may retire at 50 but then have a second career. Someone in a stress-filled or predominantly young business may be urged to retire at an earlier age.

Looking at the interests and concerns of both parties will also entail a thorough discussion of the retirement assets available to each.

• If one party is going to continue working and saving for retirement, perhaps the other could receive more retirement assets in exchange for a shorter term of maintenance; or
• Perhaps budgets will ensure that both parties will have post-divorce savings for retirement; or
• If someone is going to go from full- to part-time work, provisions can be made for an appropriate reduction; or
• If there are insufficient retirement assets, you can look into the purchase of an annuity as noted by my colleague, Dan Burns, in No Pension? Why an Annuity Might be Right for You.

Mediation will also give the parties an outlet to talk about their fears of the future, such as living in poverty or working until the day they die. Neither of these outcomes is likely to happen in a mutually determined and balanced mediated agreement.

{3:24 minutes to read} As with most people, there are some challenges that I welcome, and some that I dread. This goes for mediation as well.

A challenging mediation isn’t necessarily challenging because one or both clients are difficult; for me, it’s often because the clients are so diametrically opposed that, no matter how many techniques and skills I use to help them resolve difficult situations, nothing seems to help. I’m talking about extreme situations where even my indefatigable optimism that conflict can be resolved is challenged.

So, there I am, dreading the next meeting and preparing for the worst. Before my clients arrive, I review my notes and think about skills I’ve learned over the years and how I can address what I’m sure will be the same unresolved conflict.

Then, something surprising and wonderful happens. The clients come in relaxed and calm and tell me that they have reached an agreement on their own. What had seemed to be an insurmountable conflict has been resolved. By them. Outside of a meeting.

The last time this happened, I tried to figure out why. What happened after they left that could not have happened in our meeting? Is there something that happened in the meeting that helped them to talk on their own?

I think there are a number of factors at work.

Motivation

When parties are stuck, before they leave, I try to frame for them a few options generated in the meeting for them to consider. I always make one of the options ending the mediation and going to court. Since most of my clients come to mediation precisely because they do not want to go to court, I think that the option of compromise or court is a motivating factor for reaching an agreement on their own.

Opportunity to be Heard

Even if it takes a little while to fully recognize the benefit of this, being heard and hearing the other person’s interests, reasoning and needs does serve to help the parties come to a resolution that takes those interests into consideration.

Supportive Environment

I know when I’m in conflict with someone, the one-on-one debate isn’t always the most productive. The benefit of trying to reach a resolution in a forum in which each party is supported by the mediator, who is not judging them and is not assessing fault, works wonders.

These factors may not always work their magic in a meeting, and they certainly don’t work all the time in every mediation, but I do think that later discussions between the parties can go forward in a more positive manner, even if a mediation meeting leaves much unresolved.

{3:36 minutes to read} I would have answered this question as “abundance,” which I suspect might be a common response. Not according to Brené Brown, however, in her book Daring Greatly. This amazing book is about allowing yourself to be vulnerable so you can achieve great things. Brené Brown believes that the opposite of scarcity is “enough.”

In other words, you are:

• Good enough;
• Smart enough;
• Attractive enough;
• Perfect enough; etc.

If you believe that you are enough, you can then face the vulnerability of putting yourself out there and risk the uncertain responses of others.

Clearly, this one sentence doesn’t come close to explaining Brown’s very thorough examination of how you can become more resilient and daring in today’s society. To get that deeper understanding of her thesis, I strongly recommend that everyone read the book.

In terms of “enough,” I was extremely struck by this novel way to combat scarcity. It’s a refreshing take on a society that bombards us with messages saying we can never be or have enough to be happy and fulfilled.

“I Just Want What I’m Entitled To.”

This concept came to mind when I recently heard this fairly common refrain from a client. With all of the uncertainty that separating couples face, I completely understand when one or both parties use that phrase. Undoubtedly, there are friends and family urging them to be sure, especially in mediation, to get all that they can—to not be taken advantage of by their spouse.

The thing is, though, to what are they entitled, and how is that determined?

If it’s what the law provides, that may not be such a clear cut answer. As I’ve mentioned in many posts, even something clearly defined in a maintenance or child support statute is not always so crystal clear when you consider income over the cap, and whether a court determines to apply the statute or not.

• Even if something is clearly determined under the law, what if it doesn’t provide all that a person needs?
• Or what if by making that payment, the other party doesn’t have enough to meet basic expenses?
• If there are scarce resources, how are they to be allocated within the structure of entitlement?
• Do you spend a small fortune for a trial to have a judge decide?
• Do you leave it up to your attorneys?
• More importantly, do you trust others to make that decision for you?

Why not be an active participant in a process to determine what works best for you and your partner? Whether there are scarce resources or not, a discussion focused on need and ability to pay seems to make more sense than a litigated battle over a legal entitlement.

{3:12 minutes to read} Having been raised by a mother who once heard an ambulance and acted upon the belief that it carried my aunt, who, being 15 minutes late in picking her up, had, of course, been in a car accident, I’m a worrier.

If I allow myself to go there, I can easily obsess about a car accident or a plane crash, things that can happen in an instant without warning and could drastically change my life. Then there are the things that are equally devastating but are played out over a longer period of time, such as the life-threatening illness of someone I love.

There probably is a piece of me that believes if I worry about something, it won’t happen, so I tend to spend time worrying about all kinds of unlikely things.

When I meet with some of my clients, I recognize that they are not worrying or obsessing about something that is unlikely to happen as I do. Many are actually experiencing the 2-pronged impact of an unimaginable event that will change their lives. First, they are feeling the instant “slap-in-the-face” kind of shock that takes their breath away, when they are being told that their spouse wants a divorce, or they discover an affair. Then comes the prolonged distress in the struggle to tell their children, work out the details of a separation, and draft and sign legal papers. I wish that I could say mediation will make the entire process painless, but of course, it cannot. I wholeheartedly believe, however, that a properly trained and experienced mediator can lessen the impact on you and your family, because in a mediation:

• You are an active participant, which means that you exercise a level of control missing from an attorney negotiation or a court process;
• You will have the opportunity to express what you feel needs to be said, in a way that is more likely to be heard by the other; and 
• No matter whether you both want to proceed quickly or slowly, the process can move along at a pace that suits. 

Most importantly, mediation is a respectful process that focuses on the future rather than focusing on past events or laying blame, which is one of the many reasons why I am such a strong advocate for mediation. It may still be painful, and it will still require hard work and time, but it should still be the first choice for a couple seeking to separate.

Comments from Social Media

I agree. Although it will not take away the pain of divorce, mediation offers the clients more control over the process and the means to move forward in a respectful manner.

Anthony Markus

{4:18 minutes to read} As Lesley Stahl was making the rounds on various talk shows, promoting her new book, Becoming Grandma, the Joys and Science of the New Grandparenting, I learned that the omnipresent Boomer generation has once again made its presence known and adopted its own version of being a grandparent.

I was then inspired to do a little research—admittedly over the internet, so I am not attesting to complete accuracy. From my experience, though, what I found seems to be on point.

• Nearly 60% of the grandparent population are baby boomers.
• The average age of grandparents is 48.
• The vast majority of grandparents are active online and a majority are still employed.
  Grandparents control a good amount of the wealth in the country and are generous in supporting their adult children and grandchildren.
• While only 13% are the primary caregivers, 72% take care of their grandchildren on a regular basis.

This is in line with both my personal experience and mediation practice. When I look at my friends and family members who are grandparents, I certainly don’t see the stereotypical image of a retired white-haired couple, who spend their time at home waiting for visits from the grandkids. I see active, vibrant people who look a lot younger than they are and enjoy being called variations of grandma and grandpa. They cherish the time with their grandchildren and play a vital role in their lives. They enrich the lives of not just their grandchildren, but their children’s and their own lives as well.

When dealing with divorce, we naturally tend to focus on the negative aspects of ex in-laws since they are more prevalent. But looking at the various permutations of family that happen after divorce, one potentially positive aspect can be found in the multitude of grandparents. It is becoming more and more common, as in my family, that children have 3 or 4 grandfathers and grandmothers who all love them and make an effort to be a part of their lives.

In mediation, I see clients turn to grandparents

• as caregivers,
• as a place for a newly divorced child to live,
• to pay for college, and
• to provide financial support.

Even if the clients don’t mention grandparents during the mediation, I do when I ask if the clients agree that, in the unlikely death of one of them, access between the children and the deceased parent’s family would be encouraged. Unless there is something very negative going on, the answer is always “Yes.” Even in contentious cases, most parents express a continuing relationship between the children and the “other” grandparents/extended family as a positive thing.

There is also the effect that a divorced child’s grandparents can have on the child’s siblings from a second marriage. It was before my time with my husband, but I understand that when his son’s mother remarried and had another son, not only did my husband take that child out while he was visiting his son, but his parents did as well, taking both children to lunch, or the zoo, or park. In fact, my mother-in-law left a bequest to her grandson’s brother, which was thoughtful and so meaningful to him.

As comfortable as the stereotypical image that some of us grew up with is, the new version of grandparents will be equally positive to today’s children of divorce.