Tag: mediation

“Let’s Mediate and Save Money on Lawyers!”

This Week’s Blog by Carole T. Orland.

“Let’s Mediate and Save Money on Lawyers!”

If you’re reading this blog and are a potential divorce candidate, you may be familiar with this refrain. Usually, it is said in a context that also includes such statements as, “Our case is so simple.” Or, “We can work it out.” Maybe, “I will be fair with you, not to worry.” Often, “If lawyers get involved it will cost a fortune and there will be less for you.” Or, “Mediation is more civil than litigation.”

Are any of these statements valid? Perhaps. But not always. It really depends on the parties and the situation at hand. At our firm, we provide mediation services, as well as litigation alternatives. The key is to screen the case at the outset to determine who and what case is appropriate for mediation.

Mediation requires a great deal of trust between the parties. That may seem odd, since you are getting divorced; however, there are situations where there is still a modicum of trust, despite the decision to go separate ways. If one party has cheated on the other, or has not been 100% transparent about finances, any trust that may have existed has likely eroded. Mediation can be difficult if the parties are in disparate positions with regard to understanding financial matters. For example, if your wife has an MBA and has been involved in complex financial transactions as part of her profession, and you are a person without similar financial acumen, the playing field in mediation will not be level. Or, if your husband is controlling and easy to anger, and you are more passive, the dynamics in mediation will likely follow that pattern making it more difficult to achieve a fair resolution.

If mediation still seems right for you, it will be important to work diligently to attain transparency and to move things along at a pace that doesn’t prejudice either party. Too many cases languish in mediation, without discovery, and prior to filing for divorce, only to fizzle out. It could mean spending weeks and months without any final result. It could also result in the expenditure of significant funds only to have to start the litigation process when the case is not resolved in mediation.

You should also be aware of adjunct costs often associated with mediation. Many people who are going through divorce mediation find it desirable or necessary to retain a coach in order to understand the negotiations, to provide context as to possible outcomes, and to assist with strategy. Even if you don’t employ a coach, at the end you will likely want an experienced divorce attorney to act as review counsel. This attorney will provide a critique of the Separation Agreement, based on the Financial Affidavits, any valuation analyses, appraisals, pleadings, and so forth. It will likely take considerable time for review counsel to provide you with an assessment of your potential settlement.

Children’s issues may also be the subject of mediation. A skilled mediator may be able to help you work though these issues to arrive at a Parenting Plan that will be incorporated into your divorce Judgment. If you and your spouse are fairly close on a Parenting Plan, mediation might assist you with ironing out some final issues. If you are fighting each other about custody, it will likely be hard to resolve your differences through mediation.

Bear in mind, litigation is not a dirty word! It can be a very reasonable alternative to mediation, where some of the issues described above are present. Litigation can be done in an amicable manner, assuming both parties and counsel are willing to do so. It can provide an efficient process for obtaining information and for ensuring that each party’s voice is heard. It can also provide transparency and ensure a level playing field. It does not necessarily result in stratospheric fees if everyone is committed to proceeding expeditiously. It means that one lawyer will be your advocate, coach and review counsel.

Litigation may also present an opportunity for mediation! Once discovery is complete, if there are still issues that prevent your case from being resolved, it can be most effective to hire a mediator to get to the end. In this scenario, the parties and their attorneys may spend a day with an experienced mediator who may be a former family law judge, an elder statesman of the bar, or a very experienced practicing divorce attorney. Most cases settle after mediation of this type.

At Broder & Orland LLC, we provide divorce mediation services as well as litigation alternatives. We are able to counsel you as to whether or not mediation is right for you and if so what type of mediation will ensure the best process and the optimal result.

THE SECRET TO GETTING THE MOST OUT OF YOUR MEDIATED DIVORCE

This Week’s Blog by Lauren M. Healy.

What is mediation?

Mediation is a process where you and your spouse jointly hire a neutral third person (a mediator) to help settle the terms of your divorce. Your agreement is then memorialized by the mediator. One of the major benefits of mediation is that you and your spouse have control over the process, such as the timing of the case, the tenor of the negotiations and the ultimate terms of an agreement.

What do I need to know before I agree to mediation?

In mediation, you and your spouse (not a Judge and not the mediator) determine how the case settles. While the mediator may provide neutral guidance, he (or she) will not take sides and does not advocate for either party. In fact, in Connecticut, mediators are not even necessarily attorneys.

How can I best represent myself in mediation?

Without your own independent counsel, you may find it difficult to navigate the complexities of a divorce, including making major financial and parenting decisions. The secret to getting the most from mediation is to hire your own attorney to coach you through mediation, or “review counsel” to assist you during the process. Instead of taking a neutral approach, as the mediator does, your divorce coach or review counsel will help you negotiate a resolution that is in your best interest.

What is the role of the lawyer who serves as coach or review counsel?

Review counsel typically does not attend the mediation sessions with you. He or she also does not usually file an appearance with the Court, but instead provides you with background support, such as:

  1. Explaining the Divorce Process. You may have questions that you do not want to ask the mediator in front of your spouse. Review counsel can provide you with a more detailed explanation tailored to your concerns.
  1. Strategic Preparation for Mediation Sessions. One of the major benefits of retaining a divorce coach is the ability to plan and prepare for mediation sessions in advance. For example, if you know that your next mediation session will be focused on alimony, you can meet with your review counsel in advance to review your rights and settlement options.
  1. Review of the Parenting Plan/Separation Agreement. Your divorce coach or review counsel should review any agreement before you sign it, to make sure that it is drafted in a way that is fair, equitable and beneficial (or at least not detrimental!) to you.

Am I allowed to have a divorce coach or review counsel during Mediation?

It is perfectly acceptable for you to have an attorney “on your side” during mediation. In fact, Mediators often recommend it to both parties.

The attorneys at Broder & Orland LLC are committed to helping our clients navigate their divorce issues in the most effective way possible, whether it be assisting clients as a mediator or as mediation divorce coach or review counsel.

Mediation in Divorce Cases

This Week’s Blog by Carole T. Orland

What is Mediation in the Context of Divorce?

Mediation can be a helpful approach in certain divorce cases. Typically the mediator is a lawyer who objectively tries to help resolve your case or specific issues within the case.

Are There Different Kinds of Divorce Mediations?

Yes.  Sometimes the parties hire a divorce mediator before either one has filed for divorce or shortly thereafter. Often the reason is that they are desirous of an amicable process and resolution at a moderate cost.

In other instances, the parties litigate the divorce with counsel and at some point decide they want assistance in settling the case, typically before trial. In this model, they usually hire a retired judge or elder statesman of the bar to conduct a session with the parties and counsel. This process can last anywhere from several hours to a full day.

On occasion, parties who are represented by counsel may hire a mediator near the beginning of the case to help resolve disputes as the case is litigated.

Is Mediation the Opposite of Litigation?

Not necessarily. As described above, mediation is often done in the context of litigation. Litigation is not necessarily a scary term and does not have to be contentious or nasty. It is often a conventional way of moving the divorce process along. In some instances it can be easier, quicker, and less expensive than mediation.

When Does Mediation Without Counsel Work Best?

If the parties have trust in each other and share the same objective and timetable for resolving their divorce, mediation can be a good approach. Of course, it is key to hire a reputable, experienced mediator. 

When Does Mediation Not Work Best?

Often, trust has eroded leading up to divorce. Also, sometimes the parties are on such unequal footing with regard to an understanding of financial issues, that the well informed party has an inherent advantage to the detriment of the other party. A common refrain is: “Let’s go to mediation. We will avoid lawyers and save money. We can work this out!” Sometimes, that obfuscates the underlying motive of trying to “put one over” on the other party. A failed mediation can be a real detriment to ultimately resolving the divorce as it can be a waste of time and money, as well as a disappointment when it is perceived that a spouse has not acted in good faith.

Is Mediation a Good Approach to Resolving the Part of the Case Relating to Child Custody and Parenting Time?

It can be. Good divorce lawyers make it their business to resolve custody and parenting issues at the beginning of the case. But an alternative might be that the parties resolve these issues on their own with a mediator. In that case, the mediator may be a mental health professional, such as a family therapist.

What Does it Mean to Have a Mediation Coach or Review Counsel?

Most of the time, parties who hire a mediator on their own will also separately hire lawyers to coach them as to divorce laws, strategy, and outcomes. They also may hire review counsel to review the Separation Agreement drafted by the mediator. The coach and review counsel are often the same person. This adds another layer to the process and additional cost. There is also the potential that review counsel’s opinions may de-rail the process at the end of mediation. It is important for parties to stress to their review counsel that they are not looking to re-write the proposed Separation Agreement, but rather looking for any potential minefields.

At Broder & Orland LLC, with offices in Westport and Greenwich, CT, we are experienced in all forms of divorce mediation. We act as mediators for parties who have or do not have counsel, and attend mediation with our clients in many of the cases we litigate.

The Connecticut Divorce: What is Family Relations?

This Week’s Blog by Christopher J. DeMattie

  • Family Relations offers a wide variety of services to help resolve parenting, custody, and financial disputes in divorce and post-judgment actions.
  • Depending on the service recommended, you can expect to meet with a Family Relations Counselor for an hour or for an extended period of time over the course of many months.

What is Family Relations Relative to a Connecticut Divorce?

Family Relations or family services is a free service offered by the Judicial Branch to assist the Court and individuals in resolving parenting, custodial, alimony, child support, and property issues.  The Family Relations Counselor assigned to your matter is typically a trained social worker or attorney.

What Services Does Family Relations Offer in a Connecticut Divorce?

Pursuant to Court Form JD-FM211 below is a list and brief explanation of the specific services:

  1. What type of alternative dispute resolution services?
  • Pre-trial Settlement Negotiations – In all Judicial Districts, Family Relations Counselors conduct pre-trial and final judgment settlement conferences with attorneys and parents in conjunction with their attendance at Family Short Calendar and other Family Civil Court dockets.
  • Mediation – Family Relations Counselors mediate custody and access disputes for up to three 2-hour sessions. These efforts are geared toward assisting parents in resolving differences in a self-determining, non-coercive, and confidential manner.
  • Conflict Resolution Conference – This is a confidential, directive process utilizing negotiation and mediation techniques to resolve the primary issues of custody and access. Parents and attorneys participate in the conferences and information from professional sources may be included. The Family Relations Counselor may offer recommendations to the parents at the conclusion of the process if the parties are unable to resolve their dispute. These recommendations are not provided to the Court.
  1. What type of Case Management Services?
  • General Case Management – A Family Relations Counselor will be assigned distinct responsibilities to assist parties in resolving their parenting issues with a report back to the Court. Some components include gathering specific information regarding the family, monitoring compliance with court orders, facilitating settlement conferences to develop parenting plans, conducting home visits, or completing other court-ordered tasks.
  • Intensive Case Management – This service offers parents in the early stages of post judgment court involvement the opportunity to enhance collaboration between the parents and formulate mutual decisions regarding the well-being/care of their children. The role of the Family Relations Counselor is to work with the parents as needed to reduce conflict, offer skills for enhanced communication, reinforce positive parenting, and report progress to the Court.
  1. What type of evaluative services?
  • Issue-Focused Evaluation – This is a non-confidential process of assessing a limited issue impacting a family and/or parenting plan. The goal of an Issue-Focused Evaluation is to explore the defined parenting dispute, gather information regarding only this issue and provide a recommendation to the parents and the Court. This evaluation format is limited in scope, involvement, and duration.
  • Comprehensive Evaluation – This is an in-depth, non-confidential assessment of the family system by the Family Relations Counselor. The information gathered by the counselor, the assessment of the family, and the resulting recommended parenting plan is shared with the parents and attorneys. This recommendation may be used to form the basis of an agreement. At the conclusion of the process, a report with recommendations is filed with the Court.
  1. What type of education services?
  • Parent Education Program (PEP) – Family Services contracts with community and private agencies throughout the state to provide this program. The PEP is a six-hour statutorily mandated, psycho-educational course for separating and divorcing parents that provides information about the impact of family restructuring on children.

What Can I Expect at my Family Relations Meeting in a Connecticut Divorce?

Typically, there are two ways to end up in Family Relations.  First, prior to having an evidentiary hearing on a Motion, you and/or your lawyer must first meet with Family Relations to try and settle the issues.  Your lawyer will present an argument and provide basic backup documents, if requested, and the Family Relations Counselor will try and mediate a resolution and/or provide recommendations.  This meeting could feel rushed as it typically lasts only between 20 and 40 minutes.

Second, if you and your spouse have disputes relative to custody or parenting time, your matter will most likely be referred to Family Relations for an intake screen.   At the intake the Family Relations Counselor will ask you a series of questions to identify the level of conflict and complexity of issues. The screening includes questions about: (a) current court orders, (b) past and present parenting concerns including substance abuse and family violence, and (c) the level of conflict.  This screen helps Family Relations determine if mediation, conflict resolution conference, issue focused evaluation, or a comprehensive evaluation is the appropriate service to help resolve the conflict(s).  Once the appropriate service is determined, an appointment will be scheduled (it may be a joint meeting or an individual meeting) and you will be asked to discuss your concerns about the children and answer concerns that the other parent may raise.  Depending on the service, you may be asked to sign release and/or consent forms to permit the Family Relations Counselor to communicate with doctors, therapists, teachers, and other relevant individuals.  Additionally, the Family Relations Counselor may conduct a visit with you and your children at your home.

Broder & Orland LLC, with offices in Westport and Greenwich, CT, concentrates specifically in the areas of family law, matrimonial law and divorce.  We have significant experience with Family Relations and understand the nuances of the process.  Our experience enables us to effectively guide our clients through the process by educating them on what to expect and to prepare them in presenting their concerns and issues in an organized and cogent fashion.

Should I Attempt To Negotiate the Terms of My Divorce On My Own With My Spouse While I Am Represented by Counsel?

This Week’s Blog by Carole T. Orland

  • During you divorce, conversations with your spouse may be contentious and uncomfortable.
  • If you are in inherently uneven bargaining positions, it will often not be productive to negotiate the case with your spouse on your own.
  • Any communications with your spouse during your divorce should be consistent with the message and strategy you have discussed with your attorney.
  • Four-way meetings may lead to positive results.

There are divorce lawyers who may instruct you not to have any conversations with your spouse on your own once you have legal representation. Our office does not subscribe to that approach in most instances. If you and your spouse, despite the fact that you are divorcing, are able to conduct civil and meaningful conversations, it may be productive to do so. We would qualify that by saying that any such communications should be consistent with the message and strategy you and your lawyer have agreed upon. It is not helpful to your case to have your lawyer proceeding down one path, only to have you travel down another.

One area that divorcing couples are often able to productively discuss on their own is a parenting arrangement for their children. It makes sense. Certainly parents understand their children’s needs and emotions far better than any lawyer in the case and almost always better than any judge who would preside at trial. So, working out arrangements for your children is an area of commonality between you and your spouse. It also can have a secondary benefit of getting the divorce on the right track. Trust in each other to come to an agreement about your children can spill over to the financial aspects of your divorce in a positive way.

Nevertheless, conversations with your spouse about a financial settlement can be tricky. If one spouse is more facile with finances, taxes, and math, it will likely result in an uneven bargaining position. In these situations, it is often better to have lawyers do the negotiating, sometimes with input from an accountant and forensic expert, as necessary. You may still talk to your spouse to arrive at general ideas about settlement, but getting into the granular issues if the bargaining positions are disparate, is likely not going to be productive.

If talking on your own to your spouse about settlement is not comfortable or inadvisable for the reasons stated above, another option might be a four-way meeting, where the parties and their lawyers meet outside of court and attempt to work through the issues. Often the case can be resolved at the conclusion of the meeting. But at the very least, it will be clear as to what the areas of agreement are and the issues about which the Parties agree to disagree. The result is an agreed upon agenda that the Parties with counsel can continue to work on, with the goal of ultimate settlement.

Our lawyers at Broder & Orland LLC are experienced in guiding our clients through negotiations during their divorce. We have an excellent handle on when discussions between the Parties will be productive, when negotiations should be conducted lawyer-to-lawyer, and when four-way meetings may lead to positive results.

WHY PARTIES NEED REVIEW COUNSEL DURING MEDIATION

Mediation is a process whereby parties who are looking to resolve their divorce or post judgment issues meet with a neutral third party (the Mediator) in an effort to settle the case. The parties’ agreement is then memorialized by the Mediator.

In Mediation, the parties (not a Judge and not the Mediator) determine how the case settles. While the Mediator may provide neutral guidance to both parties, the Mediator does not take sides and does not advocate for either party. In fact, in Connecticut, Mediators are not even necessarily attorneys! Since most parties to a divorce action are not attorneys themselves, how are they to navigate the complexities of a divorce, including making major financial and parenting decisions, without someone on their side? This is why it is critical for parties to hire their own Review Counsel to assist them during mediation.

Continue reading “WHY PARTIES NEED REVIEW COUNSEL DURING MEDIATION”

WHAT DIVORCE PROCESS IS RIGHT FOR ME? PART I – MEDIATION

Divorce touches almost every family in our state. According to statistics published by the Judicial Branch from the time period of July 1, 2013 to June 30, 2014, nearly 33,000 family cases were added to the already crowded docket. Just as no two marriages are the same, no two divorces are the same either. If you are a person living in Greenwich, Westport, Stamford, Darien, or New Canaan contemplating divorce, you have several options to choose from. Generally, the options fall into four main categories: (1) Mediation, (2) Collaborative, (3) Litigation, and (4) Alternative Dispute Resolution (“ADR”). At Broder & Orland LLC, we counsel individuals as to the positives and negatives of each category. This four (4) part series will discuss some of those points, starting with mediation.

MEDIATION

In strict mediation, the divorcing couple works with a neutral mediator whose job is to help facilitate and/or broker a comprehensive agreement on all issues related to the divorce including legal custody, physical custody, alimony, child support, housing, division of bank, brokerage, and retirement accounts, and the division of personal property.

Theoretically, this is the most idealistic of the main categories because it involves the couple working together to resolve their issues outside of the courtroom in an expeditious manner at a minimal cost. However, in application, mediation often does not follow the idealistic path. Generally, for a mediation to be successful, each spouse needs to (a) fully trust one another, (b) be on equal footing with regard to knowledge of his/her finances, and (c) be invested in truly wanting to get divorced.

Continue reading “WHAT DIVORCE PROCESS IS RIGHT FOR ME? PART I – MEDIATION”