Tuesday, January 27, 2015

10 Things to Remember When You Mediate

I have been in mediation a lot over the last few weeks, sometimes as a lawyer and sometimes as a mediator.  Here are 10 things I think you need to remember when you mediate.

1.  Be prepared.  This is not something for which you just show up.  If you need documents, bring them.  If information needs to be put in a spread sheet, get it done.
2.  Know your bottom line.  What is it you can't live without?  That helps you focus on what is important and necessary.  It makes sure you don't forget it.
3.  Know what is expendable.  What can you give up in the interest of reaching an acceptable solution? Not everything is of equal importance, and you will have to compromise.  Some things are nice to have, but it won't kill you not to have it.  What is that organizing experts say - if you haven't seen it in a year and don't miss it, then you don't need it.
4.  Let go of the word "fair."  Life isn't fair.  If life were fair, you wouldn't need to attend mediation, but there you are.  The word is too darn emotional, and means different things to different people.  Embrace the word "acceptable."
5.  Resist the need to tell the mediator your entire story.  If it's not information that will help reach an agreement, it doesn't need to be shared in mediation.  Sometimes, at least part of the story has to be told, but all of it rarely does.
6.  The reason for #5 is that you need to remember that the mediator is not a decision maker.  They understand that there are deep feelings on both sides underlying a dispute, and they feel for you.  They are, however, a neutral whose job is to help you and the other side reach agreement.  Telling the mediator over and over again what a SOB the other side is (and providing copious details in support) does no good and wastes time and energy.
7.   You still need a lawyer.   Even if the mediator is a lawyer, they can't give you legal advice.  You need someone who can - your own lawyer.  There are plenty of mediation friendly lawyers out there who will advise you and not torpedo the process.
8.    Don't measure success by whether you resolve all of the issues in your dispute.  Sometimes you can't, but any issues you can resolve on your own are better than those a judge decides.  Plus, if you have to go to court, it will save you time and money if you have fewer issues to resolve.  In my book, if even one issue is resolved, mediation is a success.  Adopt that philosophy.
9.    Stick with the process.  Sometimes it feels like you're not making process.  It usually feels the most hopeless right before all the pieces start to fall together.  Be patient.
10.  Remember that although mediation is less combative and confrontational than litigation, it is not an easy process,  It requires you to advocate for what you need and communicate, with help, with the other side.  It is hard work.

Monday, January 26, 2015

And My Two Gold Teeth.....

This post is in honor of my dear friend who today lost the first and most important man in her life - her dad.  There is no loss that can compare, and nothing but time to ease the grief.  I grieve with her and her family and wish them peace.

The story of the two gold teeth is one my dear friend could not wait to tell her father,when she saw him to help raise his spirits.  I don't know that she got a chance.  She and I were mediating together a case.  Some people are incapable of reaching a comprehensive agreement.  They continually have something up their sleeve to throw into the mix just when it looks like matters may reach a resolution.  It's always something.  This was one of those cases.  As my friend and I put forth the latest offer from the other side, the person listened and answered their offer, then she took a deep breath and said she wanted one thing more - the return of her two gold teeth.  We thought it must surely be a joke.  It wasn't.  It was an offer we had to take back to the other side.  Could we do it with a straight face?  We weren't sure.  We did.  The response?  "She got those during the marriage, so isn't one mine?"  You can't make this up.  Here in the Trenches.

Wednesday, January 21, 2015

10 More ThingsYour Divorce Lawyer Wants You to Know

Here are 10 more things I'd like my clients to know when they end up here in the Trenches.

1.  Whatever brought you to the Trenches is not my fault.  I didn't marry your spouse; I didn't live your life.  Don't take it out on me.

2.  If the judge makes the decision, there are few, if any, do overs.  You don't get to bargain or negotiate with the judge.  Judges are paid to make decisions, and that is what they do.

3.  I've been here before.  I know what needs to happen, when and why.  If I ask you for something at a certain time and in a certain way, there's a reason for it, even if you don't know it yet.  Do it.

4.  Think about what it is you need to move forward with your life.  Think about it early and often.  Don't wait until 5 minutes before trial or mediation to start this process.

5.  Don't sign anything you haven't thought through, understand and with which you agree. Once your name is on a document, we're done.  There's nothing I can do after that to change any potential agreement.

6.  By the same token, asking questions is not a bother.  There is no question too small, too "stupid" for me to answer.  I would rather you ask and get the answers you need than make decisions that affect your future from a place of ignorance.

7.  When I tell you there is a deadline, there's a deadline.  It's not a guideline.

8.  Discovery responses need to be complete.  I know they're a pain to do, but your responses can and will be used as evidence, and can be used to limit the evidence you present at trial to what you provided in your responses.  I also need complete responses so I have a complete set of facts from which to understand where you're coming from and to be able to negotiate on your behalf.

9.  I understand more of what you are going through than you think.  You don't know my background or my life experiences.  Don't assume I have no idea of your experiences.

10.  Don't abuse the people who work for me.  They tell me how you treat them.  They tell me what you say and how you say it.  I don't like it when you yell at me.  I won't tolerate mistreating those who work for me.

Tuesday, January 20, 2015

Up, Up and Away

My custody trial last week was a move away case.  That means that one parent wants to move from the geographic area and take the child with them.  In this case, one parent had to move to Hawaii for work. The other parent was staying in Maryland.  Unless we want to locate the child in Iowa or Kansas,  there's really no compromise: someone has to win and someone has to lose.

As anyone who toils here in the Trenches will tell you, move away cases are our most difficult cases.  First, because there is no place for compromise.  Unless someone simply gives up, the case is going to trial.  Second, because if you are representing the parent who is moving away, the burden of proof is impossibly high.  In a modification of custody case, the presumption is that if the child is doing well, staying where they are is in their best interest.  That's how the court usually defines stability, which is always presumed to be in a child's best interest.  If both parents are reasonably fit parents, with only the usual parental failings, the parent who is moving away has to prove that what they have to offer by moving the child away is superior enough to maintaining the status quo that it warrants uprooting the child from what it knows.  As you can imagine, it's pretty hard to meet that burden of proof.  Still, we have to try as hard as we can to do it, because it's what we do.  Here in the Trenches.

Thursday, January 15, 2015

It's Cruel to Be Kind

I never post during trials - never know who's reading, don't you know.  I had trial Tuesday and Wednesday of this week.  We were before a new judge, as in newly made a judge, so I wasn't sure how it would go.  The judge was attentive, asked good questions, and made good rulings during the trial.  When he made his ruling, he tried to be kind.  You know, sometimes being kind is not a kindness.

I know I sound like I've lost my mind, but hear me out.  When this judge gave his opinion at the end of this very difficult child custody case,  he told both the parents that they were good parents.  He said he considered the factors he was required to consider, but he didn't say which ones were important to his decision, just that he followed them.  Then he awarded custody to one of the parents.  I think he came from the right place; I think he thought he was being kind by not telling them exactly why he decided in the way he did.  He wasn't.

In the 20+ years I have worked in the Trenches, it has been my experience that not knowing why a judge makes a decision is worse than knowing the reasons.  It doesn't matter if the reason is that the parent is a terrible parent or if it is simply that they didn't meet their burden of proof.  Giving them the reason is always a kindness.  Otherwise, they always imagine that the truth is worse than it is, no matter what the truth actually is.  They are sure the judge was just being nice when he said they were both good parents; that he was just placating them.  They are positive that the judge thinks they're a horrible parent and that the other parent is wonderful.  They are certain that the other parent is going to capitalize on the judge's opinion of them, and will tell their child they are horrible.  They know they'll lose their child forever.  I can't talk them out of it, even though I am positive that the reason they lost their case is that they had the burden of proof and the facts weren't there for them to meet it.  That's it.  So why couldn't the judge just say that?  It would have been kinder.  They would be sleeping at night.  Here in the Trenches.

Wednesday, January 7, 2015

10 Things I Wish My Lawyer Had Told Me Before My First Court Appearance

I'm in the midst of preparing another client for trial.  It occurred to me that we spend a lot of time preparing clients for trial, but not a whole lot of effort is expended on a first court appearance.  Even though the first court appearance is usually one of low importance, good habits take time to create.  Here are my top ten for a first court appearance:

1.  Be half an hour EARLY for court.  Unlike those of us here in the Trenches, most clients have never been to the courthouse.  It takes time to find parking, walk to the courthouse, and pass through security.  Every courthouse has security, and there's usually a line.

2.  Wear appropriate clothing.  I used to tell clients to wear what they would to church - then I ran by my local church on a Sunday.  Now I say to wear business casual.  For men, that means at least nice slacks and a collared shirt.  For women, that means slacks or a skirt and a top that your mom would want you to wear, or a dress.  Do NOT wear shorts, jeans, slogan shirts, or anything that bares the belly or has tears.  Men, don't wear sandals.  Women, nothing too tight or low cut.

3.  Once you enter the courthouse, go to the television monitors in the lobby.  Your case will be listed on the monitors, along with the name of the Judge or Master and the location of the courtroom.  Go to that courtroom.

4.  In every courtroom there are two or three people about whom you should be aware.  Most folks know there is a Judge or Master.  There is also a courtroom clerk, who makes sure the recording devices are turned on and working, checks people in, provides and enters the dates for court hearings, and marks exhibits.  There may also be a sheriff or bailiff to keep the order.  These last two people say almost nothing in the courtroom, but they are still important.

5.  When the Judge or Master enters the courtroom, stand up.  Remain standing until you are told to sit..

6.  Until your case is called, you sit in the gallery of the courtroom.  You sit QUIETLY while you wait.  This is not a time to talk to your lawyer or your neighbor.  If you need to talk, step outside.

7.  When your case is called, come up to the tables in front of the Judge.  The Plaintiff sits at one table with his/her lawyer, and the Defendant and his/her lawyer sit at the other.  Don't worry:  if you have a lawyer, they'll tell you where to go.  Otherwise, the tables are usually marked.

8.  When you come up to the table, remain standing until you are told to sit.  If you have to speak to the Judge or Master for any reason, stand up to do so unless you are told otherwise.  Always refer to the Judge or Master as "Your Honor."

9.  If you have a lawyer, don't speak to the Judge or Master unless they specifically ask you to do so.  Your lawyer speaks for you in the courtroom.  Never argue with the Judge or Master.

10.  Use your best kindergarten manners.  Don't interrupt.  Don't yell.  Do speak up, and speak clearly. Bring the documents the scheduling order asked you to bring.  Bring your calendar.

Follow these ten rules; your lawyer and the Judge or Master will thank you.  Here in the Trenches.

Tuesday, January 6, 2015

The Black Hole

Mom's leg has been giving her fits, off and on, for a few years now.  The last few months, the discomfort has been fairly acute.  First, it felt like the knee, then behind the knee, then above and below the knee.  It just hurt.  She did nothing about it.  Sure, she put ice and heat on it.  She went to her general physician.  What she didn't do was go to an orthopedist or chiropractor.  The two members of the family with medical training thought the problem was her hip abductors.  Still, nothing.  Finally, this week, Mom went to the chiropractor.  It was her hip abductor.  She's had a few treatments, and is doing much better.  Thanks for asking.  So, why did Mom wait so long to do something about her leg?  Fear of the unknown.  Mom was afraid she would need surgery on her knee, and fear that surgery could be the answer kept her in pain and ignorance.

Fear of the unknown is powerful.  I think it may very well be one of the most powerful fears that exist.  We see it all the time here in the Trenches.  Abused  children want to return to the homes of their abusive parents because it's better to deal with the devil you know than the unknown.  Abused spouses stay with their abusers for various reasons, but one of the reasons is fear of the unknown.  What if the abuser is right, and they can't live on their own?  What if they really can't do better somewhere else?  The housewife who hasn't worked outside the home doesn't know how she would support herself, so she stays.  The retiree can't survive without his entire pension check; if it's divided, he can't pay his bills, so he stays.  Fear keeps them prisoner.  Knowledge may or may not make the abuse victim, the housewife or the retiree leave an unhappy marriage, but it gives them the information they need to make an informed decision.  It's different staying or leaving from fear of the unknown, than making the same decision from a place of knowledge.  Fear of the unknown is paralyzing; knowledge is liberating.  Here in the Trenches.

Monday, January 5, 2015

Time for a Change

Once upon a time, 16 years ago, I started baking cookies for the personnel at the courthouse at which I primarily practised.   I also made holiday containers for the cashews I gifted with the cookies.  At that time, I practised in one courthouse; there were 3 or 4 domestic relations Masters.  I made approximately 5 or 6 plates and 2 platters of cookies.  Daughter and Son were both still at home, and they helped, along with their friends.  We made a party of it.  Then, the state bifurcated family law cases, so I added the family division judges - all 5-7 of them.  Then, family law judges started rotating off family more frequently, and the court added court evaluators, mediators and case managers.  The number of Masters grew from 4 to 6; the number of judges, from 15 to 23.  In the meantime, I stopped making the containers for the cashews, added another courthouse to my regular repertoire, and my children grew up and left home.  The number of plates of cookies grew to 50, and the platters, to 7.  My wonderful friends donated an afternoon to me for cookies, but except for those few hours (which I greatly appreciate) and the 15 dozen cookies that came from that time, I made the remaining 145 dozen cookies by myself.  I stopped going to Christmas parties.  I participated in no Christmas festivities at all, spending my holiday time watching Christmas movies and baking cookies in my kitchen by myself.  After all of the cookies are made and delivered, I succumb to the flu, this year for almost 12 days.  I considered giving up cookies.  I told Daughter and my wonderful friends.  They told me I was being stupid.  No, they are not trying to kill me.  Daughter will have moved back to town by next year, and she and her boyfriend will come and help.  My wonderful friends chastised me for taking it all on myself, told me to delegate parts of the job to them, and offered to make some of the cookies at their homes.  Cookies will be done, it just won't be done the same way it's always been done.  That's OK.  We'll probably all enjoy the experience more.

As I sat here in my flu-addled daze and re-read my older posts, I realized I should have been taking my own advice.  Life is full of changes, whether it's because of divorce or simply the passage of time.  Some traditions endure all of life's changes.  Others need to be modified.  Sometime, situations call for brand new holiday rituals.  Yes, it is terribly sad that things don't remain the same, but the memories endure.  Every year, as I unpack the cookie sheets, the movies and the cooling racks, I see the powered sugar fight,  the molten chocolate battle, and the faces of all of my helpers over the years.  I also see Office T in my kitchen telling me the doctors said there was no more hope.  Memories are memories, good and bad.  Those memories never go away, and they'll never fade.  It's time to build new ones, and to have fun at Christmas again.  I know my family will be grateful.  How about yours?  Here in the Trenches.