Wednesday, February 16, 2011

Family Disputes Not Limitied to Divorce

When I tell people that I am a mediator, and that part of my practice focuses on family law issues, the comments that follow are almost always related to divorce, support, and child custody issues.  However, I am quick to point out that “Family Law” covers much broader areas of concern – including such difficult situations as disputes in family owned businesses, issues surrounding estate division, and issues involving elder care.

Elder care and estate division, while not new issues, have been garnering more coverage recently in the news and attention in the public eye.  This may be a result of our population aging, or that the baby-boom generation is now providing care for their parents who are living longer than generations before them.  Whatever the reason, issues of how to provide care for the elderly - and what effect that care provision may have on the division of assets in a parent or loved one’s estate - are giving rise to more disputes that, unfortunately for the families involved, often end up in court.

A recent Wall Street Journal article profiled a family facing these questions.  The article by Anne Tergesen, “A Referee for Family Disputes,” (available for review on line at: uses an example from a family in California who hired a mediator to help a 60 year old woman and her three siblings divide land owned by their 90 year old mother – land that had been in their family for many years.   Polly Osborne, the family member interviewed for the article, stated, “We went from not knowing what to do to agreeing on virtually everything or compromising happily.”  Ms. Osborne went on to note that she and her siblings were incorporating the agreement reached in mediation into their own estate planning.

An article in The Buffalo News entitled “Mending Fences, With a Mediator,” authored by Emma Sapong and Sandra G. Boodman (available for review on line at: ) demonstrates another situation.  The article tells the story of a family fighting in court over the division of their father’s estate.  One child had provided more “hands-on” care and took possession of many of the assets after the father’s passing.  Three other siblings felt that was unfair.  As the family was feuding and incurring expenses to fight amongst themselves, they turned to a mediator.  The mediator who helped them resolve the dispute shared this, “They got to express the hurt and they were addressed effectively and they understood where the other was coming from.  And by the last session, they focused on what was really important and honored their father by working through a resolution that was respectful and accommodating for all parties.”  And, the article pointed out, the family spent less than $2,000.00 on the mediation – making the process not only productive, but also cost effective.

The key to these stories is that these families were able, with the assistance of a mediator, to preserve their relationships, save assets, and avoid courtroom drama that would have taken both a large financial and emotional toll on the families.  Other examples of disputes where a mediator can assist a family outside of the traditional divorce spectrum include: helping family members decide how to assist the elderly with managing their financial affairs; dividing up responsibility for the provision of personal care; and even issues surrounding how health care decisions should be made.  Mediation is very often the most inexpensive and productive solution facing families struggling with disputes that could otherwise tear the family apart. 

Friday, February 11, 2011

Collaborative Law: Will Alabama Join the Trend?

I recently reviewed a copy of proposed Alabama Senate Bill 18 (SB18), offered by Senator Cam Ward, which will be introduced during the current legislative session.  This bill proposes that Alabama adopt the Uniform Collaborative Law Act, providing divorcing couples in Alabama with a different avenue for seeking resolution to their divorce.  Senator Ward participated on the drafting committee of the Uniform Collaborative Law Act for the National Conference of Commissioners on Uniform State Laws.

So what is this proposed new avenue?  Collaborative Law, as the name suggests, is a process where the parties to a divorce hire lawyers trained in collaborative practice to negotiate a resolution of their divorce.  The parties agree that a lawsuit will not be filed and that all exchanges of information will be voluntary and completely transparent.  The process limits the role of the Court to enforcing the agreement reached by the parties through negotiation.  In order to ensure that the negotiation process is followed, the parties not only agree to voluntary participation, but their lawyers agree that if the process fails, the lawyers will not represent the clients in an adversarial proceeding.

The theory is that if everyone agrees to the process, and knows going in that litigation cannot happen (at least with their collaborative lawyers), the incentive to negotiate and treat each other fairly will lead to an acceptable resolution.  The process allows for other “nonparty participants” to be part of the process – financial professionals, counselors, divorce coaches, mediators, etc. – to help the parties and their lawyers shape the agreement.  Like traditional mediation, the process is privileged and confidential and the communications made during the process cannot be later introduced in a trial.

Many questions surround the process:  Will lawyers who traditionally litigate take to this new role?  Will parties abuse the process as a method to conflict lawyers out of cases?  Does the practice conform to the rules of ethics governing the practice of law?  How much input can a Court have in the approval of the collaborative agreement – i.e., child support guideline compliance, child custody arrangements, etc.?  Is the process truly cost effective as compared to traditional litigation or mediation?  Does it work?

There are examples from around the country of the collaborative process being effective in the right case.  Clearly the process is not for everyone.  Of course, litigation is not for everyone either and I firmly believe that family law matters are best resolved by the parties themselves – whether through negotiation by lawyers, mediation (which is by its definition a collaborative process), etc.  I also question how different this process really is from mediation.  Many commentators have pointed out that lawyers are not required for mediation, whereas they are for collaborative law agreements, and therefore clients get better advice and results.  In my own practice, I’ve found that most mediation clients have lawyers and my role is to help guide them to a settlement that meets their needs.  And while I have mediated for people who wish to represent themselves, I always recommend they have a lawyer review the agreement we reach through mediation.  

There is a very informative article from the Spring 2009 edition of the St. Louis Bar Journal entitled, “Collaborative Law: Good News, Bad News, or No News?” by Yvonne M. Homeyer and Susan L. Amato.  In the article, the authors discuss many of the issues surrounding the collaborative law movement.  They also provide some statistics about collaborative law from a study complied by the International Academy of Collaborative Professionals.  The data provided was from a two year survey of 502 family law cases that were handled through the collaborative process.  The data, as reported at page 28 of the Journal, showed:

- 87% of reported cases were successfully resolved, 3% ended in reconciliation, and only 10% were terminated;

- 43% were lawyer-only cases and 56% were interdisciplinary;

- The average cost for both attorneys was $18,755;

- 32% of cases met 3-4 times, 20% of cases met 5-6 times, 20% of cases met 7-9 times, and 10% of cases met 10+ times;

- 48% of cases involved a financial professional;

- 40% of cases involved one or more mental health professionals;

- 72% of cases involved children that were subject to the court’s jurisdiction (i.e., parenting plans needed);

- 76% of all clients were over the age of 40, and 60% were between the ages of 40 and 54;

- 80% of clients had completed at least 4 years of college, and 38% had obtained advanced degrees; and

- 80% of the marital estates were worth $200,000 or more, and 56% of the marital estates were worth $500,000 or more.

Given these statistics, it would seem that the process was clearly successful in certain cases.  Whether the success rate reported will translate to a broader spectrum of divorce cases remains to be seen.  The article can be found on-line at:

I am sure there will be debate regarding SB18 and that the concerns and questions surrounding the Uniform Collaborative Law Act will be addressed before the Alabama legislature.  It will be interesting to see how this law, if passed, is implemented and how widely the collaborative law practice will spread in Alabama.

Friday, February 4, 2011

School Peer Mediation Programs

Nice article today about a school peer mediation program.  These programs should be encouraged and supported by our school boards.  Any time we can empower people to look at new ways to resolve conflicts - we should take the initiative!

Wednesday, February 2, 2011

Mediation a Possible Tort Reform Solution?

During the State of the Union address, President Obama suggested he is willing to address reform to medical malpractice litigation.  This is an important issue to the Republican majority in the House of Representatives, and could be a key to the shape of the healthcare reform package after this Congressional term.

Yesterday, NPR ran a story on their website suggesting mediation could be a solution – and that the more information needs to be made available to the public about this option.  The NPR piece can be found at  The author, Michelle Andrews, points out that many plaintiffs may not even know the option exists.

Like most disputes, medical malpractice claims can be resolved easily through mediation if all the parties agree to negotiate fairly and in good faith.  There are obvious benefits to all the parties – the process is private and confidential; resolution can come about more quickly than through a traditional lawsuit; the process is less costly than litigation; and, if a settlement is reached, the payment is guaranteed to be paid without an appeal.

I agree with Ms. Andrews and the mediator she quotes in her article – an informed patient should suggest mediation even if it is not offered by his or her lawyer.  They have nothing to lose but a few hours of their time if the process isn’t successful, and the advantages far outweigh that risk.