Lawyers do Not Necessarily Know

Research has shown that lawyers routinely overestimate their chances of success in their cases, and the amount of experience they have had does not make much difference. A professor at the University Of California, Elizabeth Loftus, is co-author of a study which examined the accuracy of lawyers' predictions. The researchers surveyed 481 lawyers in 44 states who handled cases expected to go to trial. They were asked to rate their confidence in achieving a stated minimal goal. The study found that the lawyers were less successful than their predictions in 44% of their cases.

What does this mean for the person who is contemplating hiring a litigation ( trial) lawyer for a divorce case? Based on the results of the study, there is almost a 50% chance that what the lawyer the predicts will happen will not be realized. People who go to trial with their cases put their futures and the futures of their children in the hands of strangers - judges. Although judges try to come up with fair decisions, they cannot know a family's situation as well as the Husband and Wife. Also, what a judge may consider to be a fair determination may not be what the parties themselves think is fair. Think about people who you know who have gone through a litigated divorce. How many of them think that the process, or the results were fair? Mostly, the parties were pressured into decisions, even if they did not go through a trial.

In Divorce Mediation and in Collaborative Law there is no pressure from judges because the parties themselves make all decisions at their own pace, and in privacy. The goal is for the Husband and Wife t o work out what is best for them and their family, sometimes with the help of other professionals .

For more information about mediation or Collaborative Law Divorce visit my website at www.divorcemediationsolutions.com.

The Invisible Children

Last week I attended a workshop, which I organized for a professional mediators association, dealing with adult children ( 16 or 17 years old, and up) of divorce. It is a topic that most mediators (and parents) spend little or no time discussing, ("How are the kids taking the divorce?" "Great. They are OK with it"). Not surprisingly, the workshop was titled :The Invisible Children".

Although there are no parenting plans or access schedules to develop, there are many issues that face adult children as family structures change. Sometimes, the adult chldren reverse roles with a parent, giving advice and support, or being a confidant. Other times children who are just coming out of adolesence themselves and trying t0 establish their adult identities, find that their assumptions about family are turned upside down. Others fear that they will have new responsibilities for taking care of their younger siblings, or wonder if they will be able to continue attending college. Vacations at home may be particularly stressful and emotionally draining.

Bringing the voices of adult children into the the Mediation or Collaborative Process can also help increase understanding of family and couple dynamics, break through impasse and clarify goals and interests.

Jeffrey Zimmerman, PhD, a clinical psychologist one of the presenters of the workshop, co-authored a book titled Adult Children of Divorce, (new Harbinger Publications). Copies are available from the publisher or at Amazon.com.

ParentAlienation Awareness Day

April 25, 2010 was Parental Alienation Awareness Day.

Parent Alienation is defined as a deliberate attempt by one parent to distance his or her children from the other parent. The motivation is to break the bond between the child and the other parent. It is very difficult for the alienated parent to overcome parent alienation. Rebuliding a relationship with an alienated child may seem remote or hopeless, but if no effort is made the chance of success is almost non-existent.

Here are a few suggestions when attempting Contact:
Always accept whatever contact your child will allow, no matter how little or insignificant;
Make every effort to make the contact pleasant: no criticism, arguments, complaints;
Smile. Be friendly. Keep conversation light. Have some fun.
No questions about the other parent or messages to him/her;

Do all you can to make the contact work. For you and your child.

Things are seldom What They Seem

I have been a fan of Gilbert & Sullivan operaettas for many years. When I was young, I was even a member of an amateur Group that only performed Gilbert and Sullivan works. Although many of their lines are so far out of date that it is impossible to know what they refer to, many of their themes are universal and timeless. One of them, is a song in HMS Pinafore entitled "Things are Seldom What they Seem."

I was reminded of that thought recently in a mediation that I was conducting. The couple, married for 15 years with 2 kids, had met with me three times. They were extremely nice to each other and agreed on almost every issue that was discussed. Until the subject of what to do with their house came up. Shortly after we started talking about it, they each started yelling and cursing at each other and accusing each other of really bad things. It got so heated that I had to separate them for a few minutes so that each could have a chance to calm down.

Obviously, they were not the calm and agreeable couple that they seemed to be. There were reasons that they were divorcing after 15 years.

I always try to be sensitive and cognizant to the feelings of couples who are separating or divorcing. Whether it is an "easy" case or a "hard" one, emotions run deep. I realize that the process is emotionally stressful and difficult for ALL couples, no matter how much they try not to show it, and I try to respect those feelings and recognize that they are completely natural and legitimate.

Divorce Mediation Conference - Parenting Plans

I spent this past weekend at the New York State Council on Divorce Mediation's annual conference, which, as a member of the Board of Directors and Conference Committee, I helped to arrange. More than 150 mediators from all over the state attended to hear prominent experts on divorce related issues run workshops and lectures to improve our skills and keep current with the latest information that will help our clients get through the difficult Divorce Process as easily as possible.

There was too much to summarize in one - or even a few-- posts, but I will provide a few highlights. We were fortunate enough to have Joan Kelly, PhD, an expert on child development and effects of divorce on children, for a full day presentation. One of the things that I got out of it was that there is a lot of research that says that in most cases kids want, and should have, more time with the non-residential parent than the traditional every- other- weekend- and one -evening- a week, as is so commonly imposed by judges. This is true for children of all ages -from very young to college aged.

Several websites with examples of parenting plans were cited. Here they are for you to look at:
www.AFCCNET.ORG (Planning for Shared Parenting)
www.STATE.AK.US/COURTS/FORMS/DR-475PDF
jbkellyphd@mindspring.com (Parenting Plan Options for School Age Children).

By the way, the Conference was held in Saratoga Springs, New York. The area is beautiful with lots to do, and many moderately priced hotels and motels (except in racing season). It is a nice place to visit and to take the kids.

Different MediationStrokes For Different Mediation Folks

Every divorce and family mediator is dedicated to the principle known as "Self-Determination". That means that couples should be the ones who make all decisions related to their separation or divorce issues, and not some outside third party such as a judge or a lawyer. The role of the mediator is to help the couples discuss the issues and reach agreements, if possible.

There are three main styles of mediation: "Transformative", "Facilitative" and "Evaluative". In Transformative Mediation the emphasis is not necessarily on reaching agreement. It is more concerned with the relationship between the parties and helping them recognize each others needs, interests and points of view. In Transformative Mediation the parties are in charge of the process and the outcome. Transformative mediators do not speak to the parties separately (known an"caucus").

In Facilitative Mediation the mediator structures the process to try to make sure that the parties reach agreement based on information and understanding. Some facilitative mediators may speak to the parties separately, but they do not make suggestions on what to do, nor do they make recommendations as to what the parties should agree to.

Evaluative Mediation is a process similar to the one used by judges to convince the parties' lawyers to get their clients to settle. Evaluative mediators may point out the weaknesses of the parties' cases or make recommendations of what the parties should agree to. Evaluative mediaotrs caucus with the parties regularly.

When choosing a mediator, you should ask him or her what style they use (many mediators combine aspects of one or more styles, but have one principle approach), and you should consider which of those approaches would work best for you before you start.

Tax Filing Deadlines Extended

The IRS and NJ have extended filing and payment deadlines due to the severe flooding last month. For more information visit the following sites:

IRS: http://www.irs.gov/newsroom/article/0,,id=220998,00.html

NJ: http://www.state.nj.us/treasury/taxation/njstormrelief.shtml

Mediation is Coming to T.V.

USA Network, a major cable network, will be presenting a series about Mediation. "Facing Kate", starring Kate Shahi, centers on a top litigator who becomes frustrated with the injustices that she sees in the Legal System, and decides to become a mediator.

"...with traditional lawyers, it's always one wins, one loses; in mediation, the goal is to have win-win..."

The series, which is currently scheduled to start with a 90 minute pilot followed by eleven episodes, is expected to air this Summer or early Fall

New York's Highest Court Rules That New York Courts Have Jurisdiction to Entertain An Action For Equitable Distribution and Dissolution of a Same sex

The highest appeals court in the State of New York, The Court Of Appeals, issued a decision on March 18, 2010 which determined that New York courts were empowered to consider a case involving a claim for equitable distribution and dissolution of a same sex civil union which was legally entered into in Vermont.

Both parties were New York residents who went to Vermont solely to enter into the Civil Union. After their relationship deteriorated, this action was brought in New York. The case could not be heard in Vermont because to start the case there, one of the parties would have been required to be a Vermont resident for a year before the action was commenced.

The New York Court of Appeals recognized that New York public policy protects same sex couples in many ways. It pointed out that the Public Health Law recognizes civil unions that were entered into legally, and it cited laws and decisions as examples of the protections afforded by the State. The Court concluded that even though New York does not have a specific mechanism to dissolve civil unions, it has the jurisdiction to hear the case and decide the issues.

This decision did not rule on the specifics of what the decision should be, but only that the lower court had the jurisdiction to hear and decide the case.The case was sent back to the lower court to hear and decide the issues.

Retirement Plan Basics for Divorcing Or Separating Couples

There are two basic types of retirement plans. Those that are defined by the benefits paid, and those that are defined by the contributions made. Retirement plans that are defined by the benefits paid are are referred to as “Defined Benefits” plans. Defined benefits plans are what most people think of as pensions. Those plans tell you how much you will receive, usually on a monthly basis, when you retire. The amount is usually based on your earnings and the amount of time spent in the pension system. Many public employees have this type of retirement plan.

A plan defined by its contribution, sets the amount by the amount that you have contributed into the plan, often with matching contributions from the employer. Those types of plans are referred to as “Defined Contribution” plans. Periodically, the trustee issues a statement showing how much is in the plan. Examples of this type of plan are IRA, 401K, ESOP, Profit Sharing, Tax Deferred Annuities.

The value of a Defined Contribution plan is easy to determine: The balance is shown on the statement similar to a bank account. The value of a Defined contribution plan is more difficult to determine, and if the administrator of the plan cannot provide a value, it may be necessary to hire an accountant or other financial professional to do the computation. Dividing retirement plans require court orders (Qualified Domestic Relations Orders, known as QDROs). They are very technical in nature and require special expertise.

Retirement is the most complex and difficult area of Divorce Law. . Mistakes may not be discovered until many years after the divorce. Many divorce lawyers and mediators do not have the knowledge to handle retirement benefits, and they bring in experts who specialize in that area to deal with that part of the case.. You should ask your attorney what he or she knows about QDROs. and how he or she expects to handle it. An attorney who downplays the difficulties should make you uncomfortable, and lead you to ask exactly how much experience he or she has dealing with retirement plans and preparing QDR

How To Obtain Your Truly Free Credit Report

I always recommend that my divorcing and separating clients obtain ans share their credit reports to make sure that there are no surprise debts or credit lines. People may discover that they have credit cards in their name that they were not have aware of, and obtaining the report early in the divorce process presents the opportunity to correct inaccuracies that could impact ability to qualify for credit, or even for employment.

A Federal Law requires the three credit reporting agencies : Equifax, TransUnion and Experian, to provide consumers with one free credit report every year, upon proper request. You have the right to get your free credit report from AnnualCreditReport.com (877 322 8228). The website contains ads for the services of the agencies for which there are fees, so be sure to click the link for the free report. You may also want to visit the website of the Federal Trade Commission, FTC.GOV, for more information.

Children and Divorce

There was an excellent Op-Ed piece in yesterday's New York Times (February 18,2010) by Ruth Bettelheim, a marriage and family therapist. The message was a familiar one to those of us in the Mental Health, Mediation and Collaborative Practice Communities, but somehow it has been slow to be accepted, understood and internalized by the general public and by legislators. The message is a simple one: Exposure to parental conflict is bad for kids - especially in the context of a divorce.

Research has shown that children are resilient, can and do, adjust and cope with divorce and lead happy, productive and successful lives. But being exposed to parental conflict before, during and after a divorce can lead to a number of psychological problems including low self-esteem, depression, difficulty in forming and maintaining relationships , difficulties in school, as well as physical complaints. Making Divorce Easier on Your Child" a book written by Nicholas Long and Rex Forehand, contains the following quote from a child: " My parents would fight all the time. It got so bad I started getting stomach aches and throwing up. My mom took me to a bunch of doctors. There was nothing wrong with me; it was just the fighting"

Unfortunately, although parents love their children, the kids often become pawns in a battle over other parental issues, especially money. Child support and child custody become financial battles. The traditional Divorce Model -Litigation - encourages such practices and polarizes families with each side trying to discredit the other.

Collaborative Practice and Mediation view divorce issues as joint problems that need to be resolved together in order to preserve family relationships, rather than as a war that produces losers, but no winners.

If you are interested in pursuing this issue further, the following references would be good starting points.

http://www.nytimes.com/2010/02/18/opinion/18bettelheim.html?ref=opinion -This is the link to the Times Article;

Divorcemediationsolutions.com - My website that has two related articles, Children and Divorce",and "Telling the Children";

Making Divorce Easier on Your Child, by Long and Forehand ;

The Truth about Children and Divorce, by Robert Emery.

Litigate,Collaborate or Mediate? Now you can Arbitrate Child Custody -at least in New Jersey

Arbitration is an alternative to a court making a decision. The parties hire a neutral person, known as an arbitrator, to decide the matter. It is like hiring a private judge. For many years, and in many states, arbitration was not allowed for child custody and related issues, especially in the context of divorce .

Recently, the New Jersey Supreme Court decided, for the first time, that child custody and parenting time disputes may be resolved by parents using binding arbitration under New Jersey Law, subject to certain procedural safeguards. The right to appeal is strictly limited. This decision allows parties who cannot agree by themselves, to avoid long, expensive and public court proceedings, and have their disputes decided privately.

For those interested in reading the case, it is Fawzy v. Fawzy, 199 N.J. 459 (July 2009), 2009 N.J. LEXIS 634.

Not Listening, Not Hearing

Recently, I saw a cartoon that pictured a middle aged couple sitting in a living room. The caption was" I'm sorry dear, I wasn't paying attention. Could you please repeat everything that you said since we got married."

That cartoon hit a responsive chord because many of the divorcing couples that come to me have not heard or listened to each other -- usually for a very long time. None of us like to feel like we are "talking to a wall". Lack of communication leads to resentment, anger, frustration.

Mediation requires that the husband and wife listen to each other. When I work with a couple to help them resolve divorce issues, I take the time to help each party learn to listen to the other, and I make sure that each is heard and understood by the other. Once the couple can hear the other, and possibly understand, where the other is " coming from", they can look at the issues as problems that need to be solved by working together, rather than a series of battles in a war.\that cannot be won.

There are methods of teaching how to listen, how to hear, how to be heard, how to understand and how to be understood. They are part of my mediation services.

Divorce in tough economis times

There was an article in today's New York Times (Feb 11) that reported about some trends and research about divorce and marriage divorce . Here is the address to access .
http://cityroom.blogs.nytimes.com/2010/02/09/love-in-the-time-of-recession

Basically it talks about marriages and divorce rates going down because of the bad economy. As we all know, a litigated divorce can be very, very expensive, or maybe just expensive.

The article does not mention Divorce Mediation. Mediation's costs - both financial and emotional - are almost always a small fraction of a litigated divorce. It also does not discuss legal separation, without divorce.

For more information about Legal Separation or Divorce Mediation you can visit my website: divorcemediationsolutions.com

What about a legal separation?

A legal separation does not end the marriage.When couples separate legally, they remain legally married, but live separately. They A legal separation can be created by a court order (relatively rare), or by signing a separation agreement that spells out the terms of child custody and support, division of property and debts, and spousal support (i.e. alimony) if any is agreed to.

There are many reasons that some couples choose to separate legally, rather than get divorced. Sometimes the reason is religious, ethical or moral, and sometimes it is for insurance or other reasons.