{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.

“I don't care; I just want to get this over with.”

{3:45 minutes to read} When those words are spoken by a client in mediation, I always get a little twinge of dread.

To the client, this makes perfect sense. Clients choose mediation to reduce cost, reduce turmoil and proceed as quickly as possible to a separation agreement. So, why not just give in so your matter can be resolved?

If it’s a relatively minor point that is in contention, then, sure, give in and move on if this is within your parameters for a an overall settlement.

What causes me pause is when this is said, in exasperation, over a major point that needs further exploration and discussion before the client can fully say yea or nay.

My fear is that when the feeling of frustration over the pace of the mediation process is long gone, the client is confronted with the ramifications of that decision and there will be regret, possibly even dissatisfaction with the entire settlement and mediation process.

So, what do I do when I hear those words and the other party is just dying to take this offer and move on?

• I explore why the client is saying that.

• I ask them to explain why their stated reasons for opposing it are no longer valid.

• I reality test and ask them to put themselves 6 months or a year or 2 in the future and see if they would still feel the same way.

Then, if I am sure they understand what they are doing and the consequences of their decision:

• I will reiterate that they are in mediation and have the right to make informed decisions for whatever reason they choose.

• I will put language in the agreement indicating they were fully informed of other options and made the decision in recognition of the possible future consequences of it.

• I might also possibly require that they consult with an attorney in order to help ensure the future viability of the agreement before I would feel comfortable drafting it.

Sometimes after that, a client will acknowledge maybe he or she spoke too soon. However, I’ve also learned that while I may see impending doom on the horizon, for a client, it can be a freedom and release that is well worth whatever they are relinquishing.

I had one of those clients a few years ago, who in spite of having a rather aggressive litigator as an attorney, gave up significant assets and support, just because he wanted to be separated NOW. The couple did return to mediation recently, and while he acknowledged it was a struggle living with the decisions he made, he was not consumed with regret, angry over the process or even angry with his former wife. It was worth it to him to move on when he did.

So, while there may be cases where those words could mean trouble, in other cases where it’s a fully explored and informed decision, it could well be worth the sacrifice.

Social Media Comments

Thanks for the thoughtful article, Clare. As you say, one needs to reality test and make sure that the client understands the implications, but in the end, it is their decision.

Nancy Radford

{2:50 minutes to read} I am fortunate enough to say that I am not a child of divorce. Since I don’t have that first-hand experience, I have strived, as most mediators do, to learn about the impact of divorce on children and how that can be ameliorated. In mediation, the best interest of the children is paramount.

The Children

The Parents

In mediation, we work with parents to minimize the negative effect of divorce on children as much as possible. We also educate them as to resources that are available to them and their children, but we cannot extinguish the effect.

It’s especially hard because the parents are going through their own loss, and they too are confronting what could be a scary and unfamiliar future. While they are well intentioned and want to be there for their children, they may not be capable of being there as fully as they wish.

The Mediator

Mediators are trained to understand child development as it relates to a parenting plan. Mediators understand how to recognize when professional help is needed and can advise their clients of community resources for both parents and children.

It also doesn't hurt for a mediator to try to imagine what it would be like for a child to learn that their parents are separating. How would they feel and react?

A Resource

While research books abound, I suggest reading the children’s book, Divorce is the Worst by Anastasia Higginbottom. I was offered a preview of this book and recommend it highly. Although meant for children, I think it is equally enlightening for adults.

To a child, it conveys a sense that whatever they are feeling, it is okay. And while our instinct might be to help a child understand and focus on the idea that “things will get better,” this book shows that right now, from the child’s perspective, things are really not good. It helps a child to not feel guilty or like they are acting inappropriately because of how they feel in the moment.

For a parent, the book provides a clear way for them to recognize that as bad as it is for them, their children had nothing to do with the divorce, yet are taking a pretty big hit. Keeping their focus on their children and what they are feeling is crucial in this unsettling time.

{3:30 minutes to read} .

Do we choose our profession because of our basic personality, or does our profession cause us to form a certain personality trait?

I've always had a “never say die” kind of attitude. I would always think that I could fix it or make it better, be it a relationship or a friend who was upset. I could fix just about anything that had gone awry. A basic problem solver.

This attitude wasn't always to my advantage when it came to personal relationships, but as an attorney, it served me well. In real estate law, my clients wanted to buy or sell a house; not sue the other person or keep a contract deposit. I always believed that short of someone getting denied a mortgage, a contract would close no matter the issue. In matrimonial law, needless to say, there were many problems, and it was my job to solve those problems if at all possible.

In traditional matrimonial law, part of the bargain is that clients give you their problems, and to a great extent, give you control of themselves and the outcome. As a mediator, I don’t control my clients and no longer solve their problems; I help them to solve their own problems. In mediation, they own their problems, they own the process by which they are resolved, and they definitely own the result.

Did being a mediator change something in my basic personality? I would say yes, in the sense that I made a transition from problem solver to facilitator. Like most mediators, I came to mediation after having practiced a more directive, helping profession. I had to fight my initial urge to just fix other people’s problems and tell them what to do. It’s especially difficult when the clients may very well want you to do just that, but expedient as it may be, that is not mediation.

I think practicing mediation has made me a more attentive and better listener. It’s much easier to hear what someone has to say when you’re not thinking about how to make it better. I listen more not just to clients but to friends and family. I can recognize when someone wants empathy and to be heard as opposed to assuming that they want me to help them fix it.

Do we choose our profession because of our basic personality, or does our profession cause us to form a certain personality trait?  In my experience, the answer to both questions is “Yes.” Our personalities initially guide us toward a profession that suits, but the profession can also change and mold our personalities.

How does your personality fit your career? Have aspects of your career changed your perspective or personality?