Middle Mediation News

I am honored to now be registered on the Alabama Appellate Courts Mediator Roster. I look forward to assisting parties in reaching effective and comprehensive resolution or these difficult cases.

Mediation Week in Alabama

A good article highlighting the need for mediation awareness here in Alabama, along with a list of the activities the Birmingham Bar Association ADR Section and Cumberland Community Mediation Center are coordinating to promote "Mediation in

 the Mainstream," in conjunction with the American Bar Association's Mediation Week. The programs start today and continue through next week.

Not mentioned in the article, but also providing excellent service to our local community, are the Domestic Relations mediation programs being offered in the Jefferson and Shelby County courts. All of the programs discussed provide valuable opportunities for dispute resolution to occur so parties can avoid the costs (both financial and emotional) of a trial.

http://blog.al.com/businessnews/2012/09/birmingham_bar_cumberland_medi.html

Why You Want to Keep Control – 45 Minutes May Be All You Get....

I always tell participants in mediation that it is in their best interests to shape the outcome of their dispute – whether it is a civil lawsuit, contract dispute or a family law matter.  I explain to the parties how they have the best resources – personal knowledge and information – that they can use to create the correct outcome.  Information is the key to problem solving and the parties will always be in the best position to use the information available to them.  I explain how despite all best efforts, their lawyers will never have as much information as they have, and that a judge or jury will have even less information on which to base a decision if they do not resolve it outside of the courtroom. 

This point was driven home at a recent seminar I attended.  A judge speaking as part of a panel on family law told the audience of more than 200 lawyers in attendance that in just about every case he has made up his mind on how he is going to rule within 45 minutes of testimony. 

FORTY-FIVE MINUTES

Let that sink in for a minute (or 45).   The person who the parties are trusting to decide how they will co-parent their children, how their assets and debts will be divided, and how they will start off their lives post-divorce has made up his mind within 45 minutes of information starting to come his way.   Now this judge did go on to say that he allows both sides to call witnesses even after the 45 minutes.  However, he also said he typically limits the lawyers to a couple of hours maximum to present their case.  But after that first 45 minutes, he has pretty well made up his mind on how he is going to rule.

Though I find the thought that this is how a judge makes his or her decisions completely offensive, I do appreciate this judge’s honesty.  I have no doubt that this judge is the only one who looks at divorce cases (or most civil disputes for that matter) in this fashion.  The courts are backlogged, their budgets are tighter than ever and the pressure to move cases through the system weighs heavily.   45 minutes may be the reality – but it is not what the parties deserve or expect when they have their “day in court.”

If “45 minutes” doesn’t convince parties and their lawyers to look at other options for resolving disputes, I don’t know what will.  Parties have the goldmine of information available to them.  They can best use it to shape their outcome – the correct outcome for their particular situation.  Lawyers do their clients a disservice if they do not inform them about the reality facing them in trial and give them the opportunity to make an informed decision about the alternative avenues available to them for resolving their conflict.  Parties need to keep control of their greatest tools – their knowledge and information – and use them to create the resolution that fits their needs.

The Wisdom of Ghandi

My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and enter men's hearts. I realised that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the 20 years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby, not even money, certainly not my soul. — Mahatma Gandhi

Re-post from The Huffington Post

Good article from the Huffington Post on divorce mediation.  I like the following description:

Divorce mediation is an out-of-court dispute-resolution tool that helps people settle their differences sensibly and with the legal system having only minimal involvement.

It provides a structured process that minimizes the defensiveness and friction that are normally present during spousal settlement conversations. It does this by creating a non-confrontational atmosphere that encourages the spouses to put their best foot forward when they are presenting their thoughts and concerns to one another.

I also like the caveat at the end of the article - and I agree fully that there is no down-side:

Divorce mediation is not for every couple, and it is not for every situation. However, it has no down-side and can help people save time, energy, and expense, not to mention wear and tear on the family unit.

Check out the full article at: http://www.huffingtonpost.com/j-richard-kulerski/what-most-people-dont-kno_b_1220249.html

ADR in 2012 – A Good Start to the Year

As 2012 gets underway, alternative dispute resolution (ADR) methods - such as mediation, arbitration and collaborative law - continue to get headlines across the country.  A recent article from The National Law Journal discussed the growth of ADR nationally and the prospects for continued growth. (http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202535040657&slreturn=1) Here in Alabama, both the Alabama Bar Association and Birmingham Bar Association have active ADR sections that are providing community education and outreach programs, as well as lawyer education.  Judy Keegan and her staff at the Alabama Center for Dispute Resolution (www.alabamaadr.org) continue to provide invaluable resources to our State, and I am glad they are there to back up the Alabama ADR community. 

As outlined in an article from The Denver Post this week (http://www.denverpost.com/business/ci_19797362),  divorce mediation is a trend that continues to grow – and that is a good thing.  More couples should take control of these important decisions and do what is necessary to preserve relationships and civility during their divorce.   In a related vein, Collaborative Law continues to pick up steam in Alabama, providing an opportunity for families facing divorce to truly work in a respectful and constructive manner to achieve a resolution to their divorce that can provide for growth and healing.  And I am convinced that Collaborative Law has applications outside of divorce and family disputes.  The efforts locally by the Birmingham Collaborative Alliance (www.birminghamcollaborative.com) and nationally by the International Academy of Collaborative Professionals (www.collaborativepractice.com) can only help this model to spread and provide folks facing many types of disputes another avenue to reach resolution.

There are other areas where ADR is getting media attention as well.  The recession has lead many states to adopt programs for mortgage foreclosure mediation. While the results have varied from state to state, these programs are still being explored as avenues to provide relief to homeowners.  From the world of sports, the Big East Conference has been ordered to mediate with West Virginia University regarding that school’s desire to join a different conference.  All these trends are positive, and should be encouraged.

I will keep spreading the word about ADR options here in Alabama.  The more educated businesses and people become regarding their options for resolving disputes, the better for everyone.  As our courts continue to face large backlogs of cases with ever shrinking budgets, ADR will provide the most cost effective and time efficient means to reach the right result. 

Good Advice for Clients Discussing Mediation with Counsel

Thankfully, most lawyers I've worked with believe in mediation.  However, there are those out there who will try to undermine collaborative processes.  Good advice for clients in this article.


http://www.huffingtonpost.com/henry-gornbein/how-lawyers-can-sabotage-_b_1172733.html

Food for Thought When Hiring a Divorce Lawyer

I have the opportunity to work with many talented lawyers and their clients.  It is truly a privilege to have people put their trust in me to help them resolve the most important issues they face.  This article from The Huffington Post gives good advice to clients who are seeking divorce counsel and dispels the myth that the meanest divorce lawyer is necessarily the most effective.  As with all relationships, the key to the attorney/client relationship is trust – the client must trust the attorney has their best interests in view.  As a mediator, I strive to build trust with both clients and attorneys from the outset so we can reach the best and most effective result.   The advice here is practical and should be heeded by anyone who has to hire divorce counsel.

http://www.huffingtonpost.com/sharon-zarozny/nasty-or-nice-what-kind-o_b_1114272.html

Mediation Week - Continued

As I posted earlier this week, the American Bar Association has desgnated this week "Mediation Week."  Here in Alabama, Governor Bentley has proclaimed tomorrow "Mediation Day in Alabama."  Thanks to the Birmingham News for publishing my article this morning on the benefits of mediation.  A link to the article follows:

http://blog.al.com/businessnews/2011/10/memorandum_mediation_offers_a.html

So it is "Mediation Week" - Why Should We Care?

The American Bar Association has designated the week of October 16-22, 2011 as national “Mediation Week.” Governor Robert Bentley signed a Proclamation declaring October 21, 2011 as “Mediation Day” across the State of Alabama.  So what?  Why should Alabama businesses and consumers care about such things?

They should care because mediation provides them a more cost-effective, time efficient and comprehensive way to resolve disputes than litigation.  According to the Alabama Administrative Office of Courts, last year over 37,000 civil cases and 5,000 divorce related cases were filed in Jefferson County. This does not include the backlog of already pending cases. With State court cutbacks and the never-ending battle over Jefferson County’s finances, the court system in Jefferson County is bursting at the seams. The costs for litigation increase as cases have to wait longer for trial dates – not to mention the increased stress on the parties as their disputes drag on. Mediation provides a better path to resolution.

So how does mediation work? The mediator (a neutral third party) provides a forum for open communication and guides the parties’ negotiations so that they reach an informed and mutually acceptable result to their dispute.  By agreeing to mediate, the parties use their intimate knowledge of the situation to reach a solution that is tailored to their needs.  Advantages of mediation:

-    A “win-win” for the participants – not a decision by a judge or jury

-    Less expensive than litigation

-    Promotes continued relationships

-    Moves more quickly than litigation – and usually with less stress

-    Confidentiality—no public record

-    Scheduled to the convenience of the parties

-    Clarity and mutual understanding of the results achieved

Mediation is a very effective tool for resolving:

-    Civil lawsuits - including personal injury claims, consumer disputes, breach of contract, fraud claims and other similar matters

-    Family law disputes such as divorce, child custody and support issues

-    Estate, probate and elder care disputes

-    Employment disputes

-    Business-related disputes

-    Disputes between neighbors or within a community

Mediation is not arbitration, nor is it a trial. The mediator is not making a decision for the disputing parties.  The mediator guides the parties to reach their own decision, and promotes respect and dignity for all participants.  Statistics show that when parties to a dispute actively participate in crafting its resolution, they are more satisfied with the outcome and are more likely to abide by its terms.  Mediation truly provides a win-win for the participants.

Difficult times require creative solutions. I am encouraged by the efforts of the ABA and Governor Bentley in promoting mediation.  The public needs to know that there are more civil, more cost effective, faster and less destructive ways to resolve disputes than lengthy litigation.  Mediation gives the people involved a chance to shape a resolution that fits their specific needs in a creative and constructive way, with neither side ending up on the wrong side of a judgment.  I hope the people of Alabama take the time to explore their options before racing to the courthouse.

Great Quote and Goal for Life

Life is not a series of accidents.  It is a collection of purposeful acts and decisions that we make.  When we choose to be purposeful in our commitment to using our individual powers for the advancement of the collective good, then we are in search of the sacred.  When we purposefully strive to live our lives in accordance with the highest universal values, then we merge with the sacred.  When we give over our lives to the calling of healing, justice and love, then we bring sacredness to the lives of others and to the world.

David Hall, LLM, JD, from “In Search of the Sacred,” The Collaborative Review, Winter 2005, p.29.

Collaborative Law Comes to Alabama – FINALLY!

What a privilege it was to participate in the first ever interdisciplinary collaborative law training in Alabama!  This past weekend, approximately 40 like-minded professionals from the worlds of law, mental health and finance came together to learn how we could work together in teams to make the process of getting divorced less destructive, more dignified and respectful, and tailored to the needs of the family going through it - because marriages may end, but families do not.

Collaborative law is a process in which the parties to a divorce hire lawyers and other appropriate professionals 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.  In order to ensure that the negotiation process is followed, the parties not only agree to voluntary participation, but they along with their lawyers and other team members 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 and team professionals), 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, divorce coaches, child specialists (collectively with the lawyers “the collaborative team”) – to help the parties address their individual needs and concerns, the needs of their children, and to shape the appropriate agreement to address those needs.  The process is privileged and confidential and the communications made during the process cannot be later introduced in a trial.

We had a top notch training staff, including the women who literally wrote the book (“Collaborative Divorce” HarperCollins Publishers, 2006), Pauline H. Tesler, M.A., J.D., and Peggy Thompson, Ph.D.  Joining Pauline and Peggy was Lisa Schneider, CFP, CDFA – a long time regular member of their collaborative teams from the San Francisco Bay Area.  The three days we spent with our trainers were equal parts challenging and invigorating.  I hope I speak for the entire group when I say we walked away with no doubts that the collaborative model is the healthiest, most equitable, and one of the most cost effective ways a family can traverse the minefield of divorce.

There are over 20,000 trained collaborative professionals practicing in at least 19 countries worldwide.  This model has been adopted, approved and promoted by numerous judges, state appellate court justices and bar associations around the U.S.  Here in Alabama, Robert E. Lusk, Jr., assistant General Counsel to the Alabama State Bar Association, has confirmed for us that collaborative law is alive and well in Alabama and in full compliance with the Rules of Professional Conduct (note to those lawyers who still want to question whether collaborative agreements are ethical – this should allay your concerns.  Please feel free to call the Bar if you have questions about the ethicality of this process).  Further, the National Conference of Commissioners on Uniform State Laws has promulgated the Uniform Collaborative Law Act, which has been proposed in the Alabama Legislature by Senator Cam Ward.

The process just makes sense.  Lawyers are freed up from trying to wear every hat to focus on what they are trained to do best – address legal issues.  Divorce coaches and child specialists, who are trained mental health professionals, help the parties address the emotional and decision making needs and insure that the children have a well trained voice in the process that is all their own.  A neutral financial professional gathers the data related to assets, debts, expenses and the like, and presents a neutral picture of the marital estate so that everyone is working from the same – and most importantly accurate – picture of the family’s financial position.  That same neutral financial professional also helps everyone understand the financial implications of the decisions the parties are making under however many scenarios the parties want to look at.  The end result is an agreement that addresses the needs of the entire family that the parties themselves have created with the assistance of the proper professionals – and those professionals remain available to the family after the divorce as they transition into the next stages of life. 

Common questions come up when discussing collaborative law: How can a process involving all those professionals be cost effective?  Won’t the process take forever with all those professionals in the mix?  The answers are fairly easy.

First, clients are not paying lawyers (typically the highest hourly rates on the “team”) to try to be financial professionals digesting and explaining the complexities of finances.  Nor are clients paying their lawyers’ hourly rates to address every anger or emotional issue that arises – and lawyers are inherently the wrong professionals to bring these types of concerns to anyway (we typically, although not always intentionally, end up throwing gasoline on the fire).  Further, clients are not asking lawyers to make their best guess at what is the proper role for each parent with their children after the divorce. 

Also, clients are not paying for multiple trips to the courthouse for their lawyers to attend hearings or try the case.  On any given day in Birmingham, there are approximately 2,500 divorce cases pending and those cases take on average anywhere from a year to eighteen months to reach trial.  Comparatively, the collaborative process will typically take a matter of a few months to reach resolution.  The biggest plus of collaborative law is that clients are not leaving the most important matters in their life - the involvement of each parent with their children and how post-divorce financial issues will be handled - to a well-intentioned complete stranger (the trial judge) who listens to a few hours of testimony and makes his or her best efforts to make those decisions for them.  The clients make fully informed decisions for themselves.

The process takes less time than it takes to go to trial or settle your case on the courthouse steps, and the time that is spent is divided between various professionals at hourly rates that are appropriate to their professions.  The process is quicker and less expensive than litigation and nowhere near as destructive.

Collaborative law promotes dignity and respect.  It is tailored to the family in question.  It is fair.  It is confidential.  It is transparent. It is cost effective. It is time effective.  It works.  I look forward to watching this model take hold in Alabama and am proud to call myself a collaborative professional.

For more information on collaborative law, please check out the following sources:

http://www.collaborativepractice.com/

http://www.birminghamcollaborative.com/

Birmingham Bar ADR Seminar – an Update from the Bench

I participated in a panel discussion yesterday at the Birmingham Bar Center regarding how ADR can help ease the backlog of cases currently facing all divisions of our courts in Jefferson County.  I was honored to be on this panel with our presiding judge, Scott Vowell, criminal judge Stephen Wallace, domestic relations judge Julie Palmer, mediator John Hall, and attorney Anthony Joseph.   I send out a special thank you to Michael Trucks for thinking of me to fill his slot on this panel when he became unavailable to participate.  I appreciate any opportunity to speak about ADR issues as I believe strongly in the process and am committed to spreading the message.

A number of topics related to ADR and the courts were presented to a group of about 35 lawyers in attendance.  An overriding theme was the current cutbacks our courts face.  The numbers of cases stuck in the system is staggering – in the domestic relations (divorce) courts alone on any given day there are approximately 2,500 cases pending, and many stay in the system for a year to 18 months or longer!  Mediation can help move cases through the system – while providing better results for the parties in a cost effective manner.   Spreading the word is the key.

We discussed a number of great ADR programs working in our courts – volunteer mediation dockets in district civil and domestic relations courts, pro bono mediation available in circuit court, proposals for mediation in criminal cases, work with the Birmingham Volunteer Lawyers Program, the Cumberland School of Law Community Mediation Center and its program for mediating college support cases at the Jefferson County Family Court, and the upcoming Collaborative Law training.  Birmingham has a very diverse and vibrant ADR community.  Our ADR section of the Birmingham Bar is doing a great job to spread the word that better alternatives are out there.   I am committed to doing my part – and I hope the legal community will take greater advantage of the resources available to help ease the burden on our courts during this time of budgetary cut-backs.

Focus on the Decision Maker - Not on the Deal

This article is a great reminder of where the focus in mediation needs to be.  I've never been a fan of pushing mediation sessions late into the night just to "get it done today" or "strike a deal while we have everyone at the table." Decision makers need to pace themselves to make the best decisions - not be put in a position of late day fatigue that leads to a rushed decision.

http://www.nytimes.com/2011/08/21/magazine/do-you-suffer-from-decision-fatigue.html?pagewanted=1&_r=1

Great Article from Business Standpoint

Mutually beneficial. Final. Creative. Addresses issues a lawsuit never could. Preserved relationships. Cost effectiveness. Faster resolution.

This article from PropertyCasualty 360 hits every reason why businesses should mediate disputes with customers, partners, contractors, etc. It just makes sense.

http://www.propertycasualty360.com/2011/08/16/opinion-the-benefits-of-mediation?t=loss-litigation

New Jersey Court Upholds Enforceability of Mediated Agreements

On August 9, 2011, the New Jersey Superior Court, Appellate Division, released an opinion in the case of WILLINGBORO MALL, LTD. v. 240/242 FRANKLIN AVENUE, L.L.C., upholding the enforceability of agreements reached through mediation.  While not the official reporter, a copy of the opinion is available on the Leagle website:

http://www.leagle.com/xmlResult.aspx?xmldoc=In%20NJCO%2020110809297.xml&docbase=CSLWAR3-2007-CURR

The case involved a commercial real estate dispute that was referred to mediation by the trial court.  After several hours of mediation, the parties reached an oral agreement.  Three days later, counsel for one of the defendants circulated a letter to all counsel and the trial court outlining the terms of the settlement.  A few days after that, the defendant notified all parties and the court that the settlement funds had been escrowed.  The plaintiff refused to go forward with the settlement, asserting no agreement had been reached.  The defendants filed a motion to enforce the settlement, including a certification from the mediator, who was later deposed and testified at trial.

The trial court enforced the settlement and the plaintiff appealed, arguing that any settlement not reduced to writing and signed at the mediation was unenforceable and that enforcement of a settlement reached at mediation was contrary to the non-binding nature of the mediation process.

The Superior Court affirmed the trial court, finding that the Uniform Mediation Act, as enacted in New Jersey, did not require an agreement to be reduced to writing and signed before the parties left the mediation session.  As the Court stated, “To be sure, preparation of a writing memorializing the agreement at the mediation session may be the preferable and advisable course.  We must recognize, however, that some disputes may be complicated and the writing memorializing the agreement may require some time to produce.”  The Court found the letter drafted three days after the session was sufficient for enforcement under the circumstances of the case.

The Court also pointed out the plaintiff’s misinterpretation of the non-binding nature of mediation:

Plaintiff’s position also ignores the reason for referring a matter to mediation.  The process is utilized to afford the parties an opportunity to present their position before an experienced professional with the goal of resolving some or all of the differences between the parties. (Internal citation omitted) In contrast to arbitration, the mediation process is non-binding only in the sense that the process is not designed or intended to impose a result on any party.  Indeed, such a result is the antithesis of the mediation process.  Mediation is also not intended or designed as a meaningless and impotent detour on the way to judgment.  The very purpose of the process is to resolve the dispute.

Finally, the Court noted that enforcing a verbal agreement reached at mediation would be difficult due to the confidentiality of the process.  However, the parties had breached that confidentiality and the trial court had ruled on that waiver of confidentiality.  The plaintiff did not contest the trial court’s rulings on the waiver on appeal.

Mediating Elder Care Issues - Saving Families and Protecting Dignity

This is a great article on the issue of mediating disputes involving care for elderly parents.  Elder care is a growing area for mediation and these disputes can be very difficult for the families facing them.  Not only are there many financial considerations involving care for an elderly or ailing parent, but there are also many emotional costs that mediation can can help the family address.  I encourage families facing these issues to consider using a mediator - either alone or in conjunction with other professionals such as financial planners or health care providers - when the decision making becomes contentious.  Family relationships can be mended while dignity and civility are protected through the process.

http://www.aarp.org/relationships/caregiving/info-08-2011/parents-aging-elder-mediation-author-speaks.1.html

Mediation for Government Gridlock? If only it would work....

This post from The Hill is on point.  It would be wonderful if our elected officials - whether nationally, statewide or locally - could work together well enough to at least agree that such a plan such as this would be worth exploring.  It would be even better if our elected officials could treat debate in a serious and civil manner with the goal of reaching compromise on important issues of policy.  Unfortunately, it seems at all levels of government rhetoric drives the day and taking steps towards making real compromise only comes late in the 11th hour and gives rise to mediocre results.  We should not only expect, but also demand better from our elected officials.

http://thehill.com/blogs/congress-blog/politics/174815-government-gridlock-try-mediation

Mediating Landlord - Tenant Disputes

Landlord-tenant disputes are tailor made to be resolved through mediation.  The process is much faster than litigation, and the parties have a better chance at reaching a mutually beneficial result.  Programs like the one described in this article just make sense.  In these hard economic times, I hope more people take advantage of mediation to resolve these types of disputes.

http://www.digtriad.com/news/gms/article/184251/67/Mediation-Program-Helps-Resolve-Tenant-Landlord-Disputes

Collaborative Law is Coming to Alabama

I am excited by all the publicity the Birmingham Collaborative Alliance (http://www.birminghamcollaborative.com/) has been able to generate among the local and State bar associations for their upcoming training sessions.  One of the best descriptions of the collaborative law model comes from an e-mail sent to members of the Alabama State Bar Association by Judy Keegen, the executive director of the Alabama Center for Dispute Resolution (http://alabamaadr.org/):

Collaborative law provides a private, voluntary, no-court option for resolving divorce and other family disputes. It is utilized by parties who prefer to avoid the costs and stress of litigation. The collaborative process provides a method for respectful and open discussion designed to generate creative solutions for important issues. Everyone involved, both spouses and their attorneys, pledge not to litigate, but to work to settle the case by agreement. This client-centered process provides more predictability and may lower costs. Parties may engage the services of a neutral financial analyst, a child specialist or coaches to work with them as they collaborate.

I hope this model takes hold in Alabama and provides families facing divorce with more options to resolve their disputes in a peaceful and meaningful way.  The training sessions will take place September 15-17, 2011.