{3:12 minutes to read} In the summer of 2015, the New York legislature passed a statute providing for post-divorce maintenance. The statute was then signed by the governor and is effective for all matters filed in Court after January 23, 2016.

The statute provides a formula for computing maintenance based upon the respective incomes of the parties with a cap of $175,000 for the income of the person paying support. For a person paying support with income over $175,000, the Court may at its discretion, award support based upon consideration of some 15 factors.

The statute also provides the court with an advisory schedule, based upon the length of the marriage, for determining the length of maintenance.

Even though it was not yet “the law,” I have been talking about the statue with my clients since it was enacted in June, 2015 because I believed it is information they should have.

However, I have always stressed and will continue to stress to clients that using detailed and complete budgets is the best way to determine appropriate support for them. And it is as vital to look at the budget of the person who is paying support, as it is the budget of the person who is receiving support.

While the drafters of the new statute worked diligently to devise a statute that would provide consistency in awards across the state and work for as many residents of the state as possible, it is a formula that may or may not work for your family. Mediation gives a couple who is separating the opportunity to consider whether or not a formula is appropriate for them based upon factors such as

• Their particular housing costs, food costs and liabilities;
• The existence of extraordinary expenses;
• The ability to amend provisions if the person receiving support is likely to be earning more in the future, or reduce the support if the person paying is likely to have an involuntary reduction of income;
• The ability to build into your agreement “what happens if” for a special concern about the future.

This statute is one option for the parties to consider, but unlike court, in mediation you can discuss and reach an agreement that is personal to you and that meets both of your needs.

{3:36 minutes to read}
If you were to ask any parent if, under any circumstance, he or she would want to punish their children for something they had nothing to do with, they would think you were out of your mind. However, I’ve seen people do just that, though I doubt they are aware of it.

I’ve seen it happen most often in these situations:

• The other parent had an affair
• The other parent worked night and day
• The other parent ceded any responsibility for the children.

Now, here is that person sitting across from you, looking for substantial parenting time while you are thinking that right was squandered by past behavior. Why should he/she have the right to now spend so much time with the children? The simple answer is because it’s better for your children to have a good and healthy relationship with that parent than not.

The parenting plan is not designed to be in the best interests of either of you; it should be focused on the best interests of the children. And having a meaningful and fulfilling relationship with both of their parents is best for them. 

You might want to ask if it’s fair that someone can mess up so terribly and then still get to take those children that you practically raised all by yourself, for overnights and vacations? Yes, it is.

Just because the other parent hurt you and betrayed you and maybe even was not as good a parent as he/she could have been, doesn’t translate into his giving up the chance to ever be a good or better parent. Often parents are actually better parents after the divorce.

I understand that it hurts on two levels:

• First, it’s likely that during the time you were together, you took on most of the parenting. The thought of being without the children, even for a night, is heartbreaking to you.
• Second, there can be a very real part of you that wants the other parent to hurt. But you don’t ever want to hurt your kids.

You might need help in coping with either the absence of the children or the anger, and there is absolutely nothing wrong with that. Or maybe you will need a parenting plan that starts slowly with overnights until both you and the children are comfortable with all of the time that the other parent wants.

So, go to a therapist to deal with the loss and anger and/or if necessary, both of you go to a child specialist or co-parenting specialist to work on these issues. Establish a plan for addressing any concerns you have about parenting by starting slow and building up over time.

But don’t punish the children for something they had nothing to do with, by stopping them from enjoying a relationship with both parents.

If you found yourself in this type of situation, how did you cope with your anger?

{3:30 minutes to read}

After hearing Katty Kay speak about the book written by her and Claire Shipman, The Confidence Code, I immediately downloaded it and am very glad I did. They performed an exhaustive study on the highly sought after quality of confidence:

• Is it something that we are born with?

• Is it something that can be taught?

• Is it more important to be confident than competent?

and most significantly, why is it that so many women are hampered by self-doubt and blame?

Their hypothesis is that while there is some genetic component to confidence, it does not mean that if you were neither born with a strong sense of confidence nor nurtured to be confident, you will never be able to develop confidence.

To the contrary, it may be difficult and challenging, but a person can choose to care a little less about what people think, you can take more risk and most importantly, you can try to stop being perfect and please all people.

The concept of confidence came to my mind recently when I saw a client who clearly was taking on the demise of her marriage as some kind of personal failure and all her fault. I felt for her since it is hard enough to have to deal with the loss of a partner and face a new world that is unfamiliar and frightening. To do that while simultaneously blaming herself for everything that went wrong needlessly adds to the distress. One doesn’t need a career in family law to form the opinion that there is rarely one person who is solely to blame for a marriage being broken, short of a situation involving domestic violence or emotional abuse.

This theory is apparent to anyone who has ever been involved in a long term relationship. One person may have paid less attention than should have been paid to the other, but at the same time, the other person may have previously rebuked efforts at contact or developed interests that no longer involved the other. Neither is completely blameless, but also neither is completely at fault.

And no one is perfect.

It’s healthy to examine your behavior, recognize what role you played and learn from that introspection for your future relationships. It is equally healthy to examine the behavior of the other and recognize the role that the other played as well.

Imagine you are talking to a friend who is going through a divorce, could you conceive of yourself telling her it is all her fault? Of course not. You would be kind and supportive and likely tell her that she didn’t make all the mistakes in the marriage. So, try to be as supportive and kind to yourself as you would a friend.

{2:42 minutes to read} Around this time of year, most people are considering resolutions for the new year. I never did that because I feel if you want to change something to be more positive, why wait? I prefer to reinvent myself or incorporate changes as they come to mind and when I can commit to them, be it on a Tuesday in March or the last week in December.

I’m not without end of the year rituals though. Mine are just in terms of the past rather than the future. I spend some time reflecting on the year that has passed.
It’s a little too difficult for me to do this in my head, so I actually look through my calendar and seeing the notations of things I have done brings those faded memories and the emotions they stirred (or not) to the forefront.

It runs the gamut:

• Some professional matters that were so troubling and time consuming in January are but a distant memory now. The beauty of perspective is that many of those matters that kept me awake at night and provoked such anxiety, just faded away.

• Other professional matters that didn’t just fade away with distance can be more thoroughly examined, and I can see what I can take from even the most negative experience in a more positive way.

• Seeing the name of a social event brings to mind the happy occasion and the friends and family with whom I shared it.

• Seeing crossed out days means time off from work, and I remember where I went and what I did as if it was yesterday as opposed to months ago

• Some dates and times of the year bring up some sad memories, and that’s okay too.

We all remember how as children, time practically stood still and the thought of the passing of a year was an unimaginably long time. Unfortunately, as we get older and want to savor the time more than ever, years just fly by.
So, this year consider giving some thought to the past before planning for the future, and . . . Happy New Year.

{3:00 minutes to read}   

Previously, I wrote about the benefit to parents in using a child specialist.  In this post, I am writing about the benefits to clients in using a divorce coach in certain situations.

It does sound odd to think that someone needs a coach to get a divorce.  At first blush it can bring up the wholly inappropriate picture of someone on the sidelines cheering you on as you prepare to end your marriage. That is most definitely not the role of a divorce coach.

A divorce coach is a mental health professional who has training and experience in working with couples who are going through the process of separation and divorce.

With all clients, I raise the idea of a divorce coach in my initial consultation with prospective mediation clients.  At this time, I provide an explanation of all of the professionals who are available to assist them in making good decisions (attorneys, financial professionals, mental health professionals, appraisers and the like).

With certain clients, if I see that one or both are persistently reacting to triggers that lead to unproductive meetings and that my interventions to get them back on track are not working, I will raise the idea that our meetings seem to be getting bogged down and ask if one or both would consider engaging a divorce coach.

The first thing clients usually say if I suggest how they could benefit from this, is that they already have a therapist.  I explain this is not therapy in that sense.  Divorce coaching is not a long term process and instead is a highly focused meeting or meetings to address how a person can get through the process of separating more easily and be a better participant in a mediation.  Some of the benefits are:

• To manage and contain highly charged emotions;

• To address a specific situation like an affair;

• To recognize triggers that can derail a meeting and develop a strategy to avoid reacting to it;

• To provide closure at the end of a mediation to address the past and what will be a different future.

Certainly, most clients do not need to involve a divorce coach, but in those situations where clients can’t seem to get beyond the past, the divorce coach can help them refocus and move forward.  Although there is an additional fee in retaining another professional, it makes the mediation more productive, which saves money in the long run.

Would you consider working with a divorce coach? Please feel free to leave a comment in the box below.

{3:18 minutes to read} I am attending a series of workshops for mediators who are interested in practicing mindfulness tools to help alleviate stress, impart focus and extend compassion not just to others but also to ourselves.

To start in a small way, our trainer suggested as an exercise, to practice mindfulness while brushing your teeth–to really think about how the toothpaste tastes, how it feels against each tooth, the sounds.  I had to laugh because as the consummate multi-tasker, brushing my teeth means that I am simultaneously cleaning up the counter, reading a magazine, or even on occasion walking out of the room to watch television.

Of course, I recognize that a focus on more than one thing doesn’t make me more effective and instead has the opposite effect.  But it’s a hard habit to break.  For example:

I tend to glance at emails or absentmindedly play a FreeCell game while in front of my computer talking with a friend.  So after my first mindfulness workshop, I made myself just sit back while on the phone, kept my hands off the mouse and ignored the pings of email alerts.  Not only did I fully focus on the conversation, but because I was mindful of the time since I wasn’t also reading emails or playing a game, I got off the phone more quickly than I would have otherwise.  Needless to say, none of my emails couldn’t wait the fifteen minutes for me to finish my call, and I paid more attention to them when I wasn’t distracted.  (I even played a better game of FreeCell when I focused on just that.)

So, why mindfulness and meditation for mediators?  The qualities inherent in being mindful are the same as those that are beneficial in a good mediator:

1. Non-judging - being impartial and being aware of your own reactions

2. Patience - letting the clients go at their pace and not jumping to where you think they should be going

3. Beginner’s mind - be curious and open to brainstorming

4. Authenticity - be yourself, honest and transparent

5. Empathy - understand the clients and be compassionate

6. Respect - acknowledge where clients are and treat them and the process with dignity

7. Thankful - appreciate that our clients chose to mediate and give us that opportunity

And most importantly, Acceptance.  We do our best to work with our clients and help them reach agreement, but it remains their mediation and their agreement to make or not.  We are not responsible for their outcome.

I hope that as I incorporate meditation and mindfulness into my life, I can be more present and centered in my sessions and provide that thoughtfulness to my clients.

Do you practice mindful mediation?  Feel free to share your experiences in the box below.

{3:55 minutes to read} We all tend to adapt a story in retelling it.  It’s mostly small points, but sometimes people who may have lived through the event with us will notice that some liberties have been taken.

It doesn’t mean that the embellishment is done to purposely avoid the truth.  It could be:

• How we actually recall the event;

• Our “version” makes an amusing story more amusing; or,

• It puts us in a more flattering light.

And in most cases, it really doesn’t matter.  We’re just telling stories to friends and family, and we’re not being held to a high standard of truth.

But does it matter when our clients each have a very different version of the same event?

As a mediator, it doesn’t matter to me because we are not in mediation to make a determination as to the truth or fiction of past events as told by the parties.  I explain to clients that we’re there to help them resolve their futures, and that I’m not a judge or jury who is going to render a decision as to who is telling the truth.

But if those conflicting stories continue to be raised, the differences between them must be very important to the parties.  Each of them firmly believes his or her point of view is what really happened, and what they remember is impacting how they feel about resolving the issues right now.

I don’t want to spend their time and money in the futile attempt to try to determine the truth of past events, but I also don’t just want to dismiss it as not relevant when it is clearly relevant to them.

If the issue is blocking them from moving forward, then it doesn’t really matter whether it’s true or not.  For each of them, their recollection is so ingrained that it is their reality.

So, I think it’s important to talk about how they are not going to change the other’s reality, and that we are not in mediation to discover which recollection is correct.  Rather, it’s a question of each of them accepting that the other person truly believes it to be true, even if they don’t agree with that recollection.  

The focus of the conversation then shifts to why the story is important to them and what can be done in the future to insure that their interests are met versus arguing about whose version of the past is correct.

Comments from Social Media

Good topic of discussion. To help people get interests met, they have to move off blaming and towards problem solving. Extremely difficult to do due to emotional hurt lowering visionary ideas. While the emotions have to be validated, the focus is indeed on "where can we go from here" or "what do we do now" or "how can we get interests met and feel more at peace?"

Michael Toebe

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{4:00 minutes to read} Recently I received a notice of a Continuing Legal Education course sponsored by a bar association on the topic of child custody.

Ever the optimist, I took a look at the description and agenda hoping to find an offering on resolving custody through a non-adversarial approach. However, there was nothing offered regarding mediation or collaborative practice, both of which can be found on the website of the New York State Unified Court System.

Yes, I know that this program is geared to matrimonial attorneys and that they seek education as to the Court process. However, I find it astounding that in an all-day program, the agenda fails to include a section on attorneys discussing alternative options with their clients if custody is an issue.

The Program Agenda is divided into these sections:

• Attorney for the Spouse/Party

• Attorney for the Child

• The Role and Responsibilities of the Judge

• The Mental Health Expert/Forensic

Within these sections are topics such as “Advising the Client What Happens if Custody is Litigated”; “How the AFC Does the Day-to-Day Job”; “What is the Judge Looking For”; and “Conducting a Forensic Evaluation.”

Very practical instruction for a litigation, but even with that instruction, what I find sorely lacking is a topic on the devastating effects of a protracted custody battle on children and how to avoid it. I imagine that the effects of litigation on children might be mentioned in some of the other presentations, but I doubt the focus would be about how to avoid that impact by not litigating.  

I understand that custody battles happen, and in some cases the other party has no choice if dealing with a party who is unstable and determined to use the process to his or her advantage. However, shouldn’t there be some instruction to attorneys as to alternatives in cases that could be resolved in a mediation?

Or to truly go out on a limb:

Shouldn’t attorneys in a custody trial be required to inform their clients about mediation before they embark upon a process that often leaves the parents, as well as their children, with irreparable emotional harm?

Or to nearly fall off that limb:

Shouldn’t the New York State Judiciary Committee have seriously considered adopting the Bill (Assembly Bill A876/Senate Companion Bill S3734) that had been submitted to it for 2 consecutive years by the New York State Legislature which would “encourage the settlement of custody and parenting disputes expeditiously, voluntarily, and without adversarial (and costly) litigation?”

I certainly think so, and because I am still an optimist, I will continue to petition my legislators for passage of such a bill and continue to promote the benefits of a mediated agreement to the public.  

I will even send a letter to my bar association to request that future programs include a section on a non-adversarial approach.

Should programs of this sort contain information on the non-adversarial approach? Please feel free to leave a comment in the box below.  

Comments from Social Media

Clare, you are absolutely correct - the best techniques for achieving a negotiated settlement should be part of every bar course involving litigation, whether matrimonial or other civil litigation. It might be useful for you to contact the attorney and ask whether he/she had considered it and offer to prepare the relevant section on mediation and negotiation for the next time around.

Linda Alpert

{3:36 minutes to read} In a previous post, I discussed the difficulty faced by a mediator when he or she needs to consider whether or not the client’s right to self-determination should be controlling in the face of an agreement that could be considered unconscionable.

In my initial consultation with clients, I try to draw the distinction for them between someone who:

• Is unable to fully participate in the mediation;

• Does not have the capacity to mediate or

• Cannot advocate for himself or herself.

Versus someone who:

• Has the capacity to make decisions;

• Is an advocate;

• Is a full participant in the mediation process.

Lacks the Capacity to Mediate

The first type of client could include someone who is the victim of domestic violence or is unable to advocate due to mental illness or substance abuse. While these matters might be mediated with the proper safeguards and a trained mediator, they present challenges that need to be addressed. If these challenges cannot be overcome, then the parties should not mediate and should seek a dispute resolution forum which would provide the support and protections they require.

Has the Capacity to Mediate

Here, I draw the distinction between what might be viewed as a decision most people would think is contrary to law versus a decision that most people would think is unconscionable and one which would render the Agreement unenforceable if challenged.

For example, in the former, I explain that I am not talking about the garden variety case where for whatever reason, one party is willing to give more than what might customarily be considered the norm, such as a party waiving the right to a particular asset, or paying or receiving more or less than what is generally accepted in terms of support. In those cases, the decision does not render either party destitute. As long as they are fully informed, I believe a client has the absolute right to make these decisions, even if I believe them to be poor ones.

On the other hand, when clients agree to terms that would not be upheld by the Court if the Agreement is challenged because the terms are so grossly unfair, I tell my clients that while I respect their right to self-determination, it does no good for them if I draft an agreement under those circumstances.

Should that be the case, I tell clients that I would not draft an agreement unless they have consulted with attorneys. I would require this not just for the benefit of the person who would be giving up significant rights but also for the benefit of the other party. If the Agreement is likely to be challenged and may be found to be so unconscionable as to be rescinded, it does not serve either party’s ultimate purpose.

{3:24 minutes to read} When I mentioned to a friend that I loved the balance poses in yoga the best, her reply was that she wasn’t surprised because she thought I was the most balanced person she knows.

I laughed at the connection, but then when I thought about it, I do have a very strong sense of balance that plays out in many different ways.

• I would hate living in a place that was sunny all the time. After a string of sunny days, I long for rain, or at the very least a cloudy day.

• I could never consider living in a place that doesn’t have four seasons. By the end of the summer, I’m eager for the fall and even the winter.

• By the end of a vacation, I’m always ready to go home.

• If I go out to dinner for several days in a row, I yearn for a healthy, home-cooked meal.

Balance <> Equality

Although it is a common definition of balance, I don’t equate balance with equality. It’s not that I seek an equal amount of sunny and rainy days or spend as many days eating at home as going to restaurants. It’s more like an inherent sense that even too much of a good thing needs to be balanced with something that permits me to be more reflective, and thus able to fully appreciate the other. To me, balance is the avoidance of extremes.

For the couples with whom I work, I think that sense of balance may be missing, and I try to help them find it.

When you are going through a separation, it is usually devastating and scary. You have no idea what your future may bring. Balanced thoughts are not likely to be your first. In fact, your first thought may go to the extreme:

• I’m going to be penniless, struggle alone, and not be able to support myself and my children.

• I need to fight for and get everything to which I’m entitled and then some.

That can lead you to make choices such as hiring an attorney who is going to look for a one-sided agreement. Those decisions aren’t in your best interest and tend to make it even more difficult for you to find balance.

On the other hand, if you and your spouse can agree to mediate, you will enter into a process in which your fears and concerns are going to be heard and addressed, as will those of your spouse. At that point, you can look at things in a more balanced way, more quickly.

How do you achieve balance in your life?  Please feel free to comment in the reply box below.