{3:30 minutes to read} I always stress the importance of the client's right of control in a mediated matter versus the loss of control clients experience in a litigation or in an attorney negotiated matter.

My recent, 2nd personal brush with the legal system reminded me of the 1st, and brought the concept of client control in mediation to an ever greater importance for me.

A few years before I became a mediator, and still litigated matters, I retained an attorney to petition the court for guardianship of my aunt, who was in a coma after suffering a stroke. It was uncontested in that all family members agreed with my appointment. Even with that, since abuses of the guardianship process exist, there was a hearing, and questions raised by the attorney appointed for my aunt had to be addressed. I remember that when the judge’s clerk asked the attorneys to meet for a conference, I automatically got up, and then realized I was the client and not invited.  

It was a horrible feeling to be left out of discussions that affected my life and that of my family. It was also a first-hand experience of how my clients felt out of control when they were left alone on a bench while the attorneys, without their input, talked about decisions that had a major impact on them.

Of course, the delays and the timetable, which were solely dictated by the court and over which the litigants have no control, were also frustrating. This schedule failed to address the very real issues that were arising as a result of my not being able to act on behalf of my aunt.

My 2nd personal encounter with the court system was being called for federal jury duty. I was excused as a juror on a criminal trial, but I was selected for 4 weeks of grand jury duty, a service from which very few were excused.

There are 3 permitted absences. Everything else is out of your control and subject to the scheduling and convenience of those in control of the grand jury process.

This means that you do not control your own schedule -- personal and work -- for 4 weeks because, until you hear a recorded message at 6 p.m. the night before, you don’t know what time you need to report the next day. On some days, you are there to hear only one case (taking less than 1/2 of the time of my 3-hour round trip commute), and on the other days, you have 2 - 2 1/2 hour breaks in between cases.

It became clear pretty quickly that the system is not designed with the consideration of jurors or litigants paramount. As challenging as jury service was for me, it pales in comparison to having to deal with the lack of control when your future and your children’s futures are on the line.

{3 minutes to read}  It’s rare that I don’t have a mediation in which at least one of the participants will say “I just want to do what’s fair.” I think that’s a reasonable statement and that they wholeheartedly mean it when they say it. But what does that really mean?

Is It Fair Under the Law?

Sometimes clients want to know if it is fair under the law. This assumes that the application of the law is inherently fair, which I don’t believe is consistently true. Statutes are interpreted differently based on relevant and sometimes irrelevant factors, but even if the statute is applied correctly, there is one winner and one loser. Ultimately, both parties lose, given the emotional and financial costs inherent in the process, and unintended consequences arise even for the “winner.”

Is it Appropriate Under the Circumstances?

Other times, clients want to know if it is appropriate under the circumstances. To me, that offers quite a bit of latitude since I don’t think it’s difficult to be able to fashion something as being appropriate, if that is your aim, since the measure of what is appropriate can be a very low bar.

Equal Footing

I also sense that clients do strive to have each of them treated equally, and I can understand the desire to want this. To me, though, it will only work in circumstances when both parties are in fact on equal footing. In other circumstances, it could be like comparing apples to oranges, and it will take a lot of effort to achieve that. For example, when you have a parent who has the children for 70% of the time, it’s difficult to equalize all of the factors with a parent who has the children for 30% of the time.

Is our Proposal Fair?

Invariably, after clients express their desire to be fair, they usually ask me if I think that their proposal is fair. Because from the client's’ perspective, it’s a legitimate question to ask, I try to explain fully why I don’t answer that.

What I think about their agreement is not as relevant as what they think about their agreement. As long as they are not doing something unconscionable, I think that that the measure of fairness is up to them to determine.

I explain that for all of the reasons I’ve indicated above, fair is a very subjective term, and that fair to me likely is different from fair to each of them and different from what their respective attorneys might think is fair.

I suggest instead that the parties focus on the overall agreement being one that is mutually beneficial to each of them and one that focuses on what is best for their children.

How do you define what is “fair?”

Please share your thoughts and comments in the box below.

Comments from Social Media

How about the fact that the laws vary from jurisdiction to jurisdiction? If they were fundamentally fair, why are the laws pertaining to the exact same situations not the same everywhere?

Mark Baer

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Enjoyed this article and way of thinking. There are very few mediations where at least one party has said not said they'd like the end result to be "fair". Fair definitely is in the eye of the beholder. Will be sharing that message and thank you!

Carey Allen

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Great article by my colleague Clare Piro

Debra Vey-Voda Hamilton

{3:48 minutes to read} This question is the subject of many a treatise, panel discussion, informal debate among mediators, and heartfelt soul-searching for an individual mediator confronted with the situation.

If you’ve been mediating a while, undoubtedly this has come up for you. Or if you’re a client in a mediation, you may wonder just how strong is your right to determine the outcome. The scenario:

A client knows the substantive law on the issue, understands the likelihood of what might happen if he or she goes to court, and, most confounding to the mediator, understands the possible negative outcome of the choice. Nonetheless, the client insists upon a decision that the mediator believes is not sound or proper.

There can be many reasons for this. As noted in a previous post,  wanting to get the matter resolved can be first and foremost a reason for the decision, but that is not the only motivation. It can be:

• Guilt;

• Compassion for the other party;

• Taking on an extreme caretaking role; or even

• An unreasonable optimism about their future circumstances.

As a mediator, I’m not sure if the reason matters. Although it certainly speaks to whether or not the person has capacity and is making an informed decision, in terms of my having a concern over their ability to live in the future, it makes no difference.

There is guidance in the Model Standards of Practice for Family and Divorce Mediation.

First and foremost, Standard I provides:

“A family mediator shall recognize that mediation is based on the principle of self-determination by the participants.”

Then, Standard XI cites, among the circumstances under which a mediator should consider suspending or terminating the mediation, that the parties are about to enter into an agreement that the mediator believes to be unconscionable.

So, self-determination is paramount, but a mediator should consider terminating the mediation if he or she feels that the terms are unconscionable. Herein lies the dilemma:

• According to the preamble to the Model Standards, “should" indicates that the practice described in the Standard is "highly desirable and should be departed from only with very strong reason." It has more weight than “may,” but less than the rarely used “shall” which means that the mediator cannot deviate from the standard.

• Then the word “consider” again gives more discretion to the mediator and less of a mandate.

• Finally, the term “unconscionable” raises a question. Is it the common definition of “not right or reasonable,” or the definition used in law, “unusually harsh and shocking to the conscience; that which is so grossly unfair that a court will proscribe it.”

So, yes, guidance is provided, but not the answer.

Clearly, this is not a question to be fully explored in one or two blog posts, and I would not purport to do so.  But in my next post, I will explain how I address it, and the explanation I give to my clients.

{3:36 minutes to read}  

When I practiced family law in an adversarial setting, I always felt a little guilty when I said that I enjoyed it, given that I was working with people who were going through one of the worst times of their lives. But in contrast to the other parts of my practice (real estate and estate matters), family law was interesting, dynamic, and challenging. Presenting and opposing arguments was intellectually stimulating based upon the substantial case law. I also genuinely liked most of my clients and felt that I was helping them in advocating for them.

What I didn’t enjoy was:

• The lack of control over the process;

• The constant waiting for another attorney to respond;

• Waiting for the court to take action;

• The delaying tactics that could be employed by the other party;

• The cost of needless litigation to my client; and most of all,

• The negative impact that the adversarial process could have on clients and their children.

When I finally took mediation training 10 years ago, I joined every mediation organization I could find, immersed myself in the mediation community, and took advanced training and workshops, eager to learn more.

What is it about mediation that resonated with me personally as opposed to my belief that it’s the best option for most couples separating?

• Every mediation is different. Like my former adversarial practice, mediation remains a stimulating and challenging endeavor. But unlike my former practice, the focus is on helping the parties come to a mutual resolution.

• It is less stressful. This doesn’t mean that I no longer think about my clients or obsess over some of my cases outside of the meetings. It does mean that, for the most part, I don’t stay awake at night or ruin my vacation stressing over a litigated case.

• I’m part of a solution rather than part of a problem. I like the fact that, in most cases, there is a positive outlook in mediation and a focus on moving forward. In the adversarial process, it was my experience that most cases focused on the past in terms of blame and using those past occurrences as a reason for your client to receive something more.

At least for me, there seemed to be something inherent in the adversarial process that occasionally overtook me; I took things too personally and sometimes engaged in non-productive behavior. I like not doing that any longer.

{3:24 minutes to read} Depending on your situation, resolving your parenting plan can be the simplest or most difficult part of your mediation.

• I have had clients who spoke about it in advance of the meeting, and but for a few minor points, had it all resolved.

• I’ve also had clients who spent several meetings to achieve a plan that they both could agree was the best for their family.

• Most of my clients, however, will spend one entire meeting on resolving parenting issues.

However long it takes, it should be recognized as something that is subject to change.

I’m not talking about the minor changes that can arise as your 6-year-old becomes older and develops a life of her own, rendering your carefully planned access schedule subject to her activities and developing social life. Hopefully, as parents, you can work the scheduling issues out between you.

I’m talking about major things that can require an amendment to your agreement such as:

• A need to relocate out of the area (as discussed in an earlier post);

• A child’s desire to spend more time with a parent;

• A change of work hours for a parent; or,

• One or both parents believing that the plan is not working for them or the children.

To some extent, these possibilities might be addressed and agreed upon in the original mediation if there is a very young child, or if one or both parents feel that such a change is on the horizon. In most cases, however, it is not worth taking the time to explore and agree upon these potential circumstances, except to discuss in general terms the process the parties would want to follow if anything like this did happen.

• If the parents can reach an agreement, they may consider getting input from the children through the use of a child specialist or a parenting coordinator.

• Before committing to major change, the parents may, if practical, want to have a trial period to see if the change is in the best interest of the children.

• Parents may also decide to incorporate any changes, such as a transition to equal parenting time with the children, slowly, inviting the children’s feedback so they feel heard and recognized.

If the parents ultimately agree to a major change in their parenting plan, it should be made in writing as an amendment to their Separation Agreement. In New York, that amendment should be incorporated into an Amended Judgment of Divorce.

Have the needs of your children changed over the years since your divorce? How did you accommodate those changes in your Settlement Agreement?

{3:36 minutes to read} I have to say that some variation on that question is often asked of me by my mediation clients. Almost uniformly, the clients who ask that question are never my most difficult.

I suspect they may feel they are being difficult because they may have:

• Had a protracted disagreement over an issue that didn’t get resolved by the end of the meeting;

• Voiced resentment or frustration with their spouse; or

• Raised their voices as part of a heated discussion.

To me, that doesn’t make them difficult; that makes them human.

Divorce mediation by its very nature addresses highly charged topics, and a properly trained mediator can help the parties handle those strong emotions. (Of course, I’m drawing a distinction between expressing anger and a diatribe that would be considered abusive.)

Yes, I do have clients who never seem upset, angry or even sarcastic. They may speak in even tones, but that doesn’t necessarily make them “easy” or “difficult” mediation clients. Some very harsh and/or uncompromising statements can be said without the hint of belligerence.

What makes a case difficult to me is when one or both clients prefer:

• The fight to the settlement; or

• To talk about past faults rather than propose terms for the future.

With most clients, I am tolerant of some history, especially in the beginning of the mediation, because it may be necessary for someone to get that out, be heard and then move on. When that becomes the focus, though, and it is difficult to reel one or both back to talking about the issues at hand, then that makes a difficult mediation to me.

Recently, a client asked me at the end of a meeting if I wanted to work with them again because they were so tough. I was actually surprised because, while there were some heated discussions and frustration expressed over past behavior, they actually made some progress in the face of some very challenging circumstances. I explained that my focus was on the fact that they were able, for the most part, to put aside the anger and talk about realistic resolutions, and I would be willing to continue if they felt that progress had been made, which they did.

The clients that I consider to be problematic are those who lack the self-awareness to recognize that they may acted inappropriately. True high-conflict personalities, as defined by well known mediator and instructor Bill Eddy, would be so entrenched in their belief that they are right that they wouldn’t even consider having a personality flaw that would make others consider them difficult. Those would be my most demanding mediations.

{3:36 minutes to read}  New York enacted a statute several years ago to put some clarity into the process of modifying child support. The statute provides that there are three bases for a party to ask a Court to modify support:

(1) a substantial change in circumstances;

(2) the passage of three years since the last order or modification; or

(3) that a party’s income has changed by 15% or more since the last order or modification.

In a separation agreement, the parties must decide whether they want to opt-out of the applications of (2) and (3) or have them apply to any modification petitions they may file in Court.

Of course, in mediation, we do not expect parties to petition the court for a modification; any changes will be spelled out in the agreement. To the extent that they cannot be determined, the parties would go to mediation first, and go to court only as a last resort.

Normally, we want to address every possible contingency in an agreement, but there are some things that would be too convoluted or time consuming to try to predict. Others would be so unlikely to happen that it would not be cost effective to fully address them at the time that the parties are making the separation agreement.

For example:

• If someone is in a tenuous employment situation, and it is likely that there could be a change in income, it then makes sense to spell out what will happen, such as a recalculation of support by the CSSA.

• But what if that person is older, and he or she may not be able to get another job in the same field or may experience a long period of unemployment or under-employment? Obviously the needs of the children must still be met, but in those situations, it could be more equitable to reassess completely – look at both parties’ incomes, expenses and even assets to determine how best to insure support for the children.

• Maybe there has been a remarriage, and so the expenses of the payor spouse or the payee spouse are greatly diminished, making more income available for support.

• With an older person it might make sense to look at retirement assets for support.

• If child care is being used by the custodial parent and the other parent is temporarily out of work, that person could assume the child caring role.

The point is that when change occurs, there can be creative solutions available, even though those solutions are not readily apparent when the agreement is signed. You can always use mediation to brainstorm resolutions that will work for both of you and the children.

{3:42 minutes to read}

Imagine that you’ve been living separately under your agreement for a few years and are co-parenting with your former spouse. Things are going better than you ever imagined, your children are happy, and then your former spouse informs you that she will be losing her job unless she accepts a transfer to Florida. Because that job results in a significant increase in salary, and because she then will be able to be close to where her parents and sister live, she wants to move to Florida with the children.

Or

Imagine you are the mother in that scenario, and you recognize how well the children have been adjusting. You were getting along with their father, and you know the children need both parents, but then this happened. You feel it will be hard, but you won’t get a job like that here in Westchester, and the children will be able to enjoy a much higher standard of living, private schools, and close ties with extended family.

This is an example of why cases involving a parent relocating, especially a parent with whom the children primarily reside, are so very difficult. Typically, you have two very committed and well meaning parents, well adjusted children and circumstances where no one is at fault.

These are some of the most painful and hotly contested cases. Like other cases involving children, they ostensibly are decided by “the best interests of the children” and a copious number of cases relying upon the standards outlined in a landmark case in New York, “Tropea v. Tropea.”  Many different interpretations can be made by attorneys applying the facts to these standards, and the stakes are higher here than in just about any other matter involving the children, because potentially:

• 1 parent will be compelled to stay in a situation that she doesn’t feel is best for the children; or

• 1 parent will not have the consistent contact with the children previously enjoyed.

I will always talk about the concept of relocation when working with parents who are separating. Most parents will decide to include language in the agreement that indicates:

• They both agree to remain within a certain area;

• If one needs to move beyond that area, a process for making that determination.

Admittedly, outlining the process to be taken is the easy part - talking first, then mediation if they don’t reach agreement, and then court if mediation doesn’t work. The hard part is coming to a determination, whether in mediation or in court.

{3:48 minutes to read}  

We often use and hear the term “best interests of the children.” You would imagine that if applied consistently, the results would also be consistent, but that is not necessarily true. It all depends on the process used and who is making that determination.

Litigation

If you are in litigation, you might think it is the judge who makes the determination, presumably based upon applying case law to the facts before him or her. However:

• The presentment of the facts is seriously impacted by the efficacy of the presenting attorneys; and

• The applicable case law is brought to the judge from those same attorneys and the judge’s staff, again, making it subject to who is the better advocate or researcher.

And of course, this ignores the most paramount of issues, namely, why is the judge assumed to be a better arbiter of what is in your child’s best interests?

Attorney Negotiation

If you are in the situation where you have two attorneys negotiating for parties, each of them, as well as the parents, can have a very different standard as to what those best interests would look like.

Again, the result would be determined by which party is better at negotiating rather than any kind of impartial standard.

Mediation

Even in mediation, which clearly I advocate, you can have two well meaning parents who have different parenting approaches. Hopefully, they will reach an agreement that they both feel is in the children’s best interests, but that is not always possible.

At that point, I usually suggest the use of a mental health professional.

Child Specialist

Based upon the child specialist’s wealth of professional knowledge and experience, they can help parents determine what is best for the children. They can also meet with the children and provide a valuable resource for the family.

Working with a child specialist can be especially helpful when the children are infants or toddlers. The specialist can guide the parents to create a parenting plan that addresses the child’s developmental capability and accommodates the child’s differing needs as she ages.

Co-Parent Counselor

Another helpful specialist is a Co-Parent Counselor. This professional can be used during the mediation process or as a resource in the agreement if difficulties arise after the agreement is signed. They can:

• Help parents build skills so they can co-parent most effectively and minimize conflict between them;

• Help the parents determine how to tell the children they are separating;

• Teach parents skills for addressing issues, such as a parent consistently being late for access times;

• Teach parents how to effectively communicate with each other.

Even though we all have a basic understanding of the term “in the best interest of the children,” sometimes it is good to get some professional help when making that determination.

{3:30 minutes to read} To some, including me, the equity in a house is just like any other asset. I have never been attached to a home in the sense that I felt sad when it was sold. I recognize, though, that it was always my choice to move on. I’m not sure how I would feel if the choice wasn’t mine to make, or if it came at the same time as getting a divorce.

It is that sense of continuity and wanting something that is familiar to remain the same after the divorce that can lead a party to want to keep the house. Typically, it is when younger children are involved, but that need for consistency isn’t limited to those circumstances. I have had clients whose children were long out of the house or who have never had children, who want to stay in their home because it meant something more than just a place to live.

Letting the Court Decide

If this were a case for attorneys or the courts, without young children, the house would most likely be sold if the parties couldn’t agree upon a buyout. If there are young children involved, the court might order that the custodial parent stay there with the children until they graduate from high school, but if the other party can make a good case for selling, it might be sold. However it is ordered, only one party would be satisfied with the outcome.

Letting the Couple Decide

This is where focusing on the parties’ interests in mediation can help them achieve a resolution that will work for both of them.

First of all, the one party will actually hear and understand why something is important to the other. It is not just a demand in an attorney’s letter – it is a clear explanation as to why this means so much. In that sense, it becomes much more relatable, and the discussion can then lead to how each can meet that interest as opposed to a series of offers and counteroffers.

If there isn’t a way to achieve a buyout, here are some resolutions that might work for both:

• They can agree to some money up-front and then the rest over time;

• Or a sale in 2-3 years;

• Or a buyout when the other person is able to achieve it.

Whatever the decision and/or resolution they reach, through mediation it will be one with which they both can live.