Monday, March 31, 2008

7 Roadblocks to Successful Mediation

Mediation is a very popular and widespread process used to resolve disputes, especially in divorce cases. In many places in Texas and probably most other states, mediation is virtually a requirement before a case can go to trial. The reason is obvious -- it works! My observation is that mediated cases settle about 90% of the time, or more.

For mediation to be successful, it takes a good, well-trained mediator. In Texas, we normally have attorneys present and participating with the parties in the mediation; some other states often have the parties attend mediation without attorneys. Both systems obviously can be effective. Success, however, is not guaranteed and should not be taken for granted. Here are seven problems that can prevent a successful outcome from mediation.

1. Lack of preparation by one or both sides. The parties need to have all the information and records at hand so they can make intelligent decisions. It's also very helpful for both parties to have thought through their personal goals, needs and interests so they know what they should try to accomplish in the negotiations.

2. Unrealistic expectations. If one party has goals or ideas that are very unrealistic, agreement would be unlikely. It is normal for the parties to disagree about things, but sometimes there is no way to accomplish what one of the parties wants. An attorney should work with the client to help them reasonably define and describe what they want to end up with. If a party demands 80% of all the assets because the spouse has had an affair or drank too much or abandoned the family, usually the case is very unlikely to settle. As the Rolling Stones said, "You can't always get what you want." The parties need to be realistic and keep in mind the costs of not settling.

3. Lack of commitment by a party. If one party or both don't take the process seriously or don't want to settle, there won't be an agreement. Both parties need to see and feel the advantages to themselves from a settlement. Without commitment, the parties won't stay in the compromise mode long enough to settle. They can easily become discouraged if there is not a quick, painless settlement.

4. Inability of a party to make a decision. I have seen situations where we have waited two hours or more for the other party to respond to a changed settlement proposal that wasn't particularly complex. Some people don't handle stress well and some don't like to make quick decisions. The parties should learn in advance how the mediation process works and how decisions are made. They need to learn to approach the process as if it were an impersonal business deal. Participants should expect to face choices and they need to understand that they probably won't be happy with everything that happens at mediation. Even highly educated people used to making tough decisions affecting others sometimes have hard times making decisions in mediation.

5. Positional bargaining. People who begin negotiations without clearly defining their goals and needs will usually begin by staking out a territory or percentage as a starting point and leave themselves room to compromise. Sometimes, both parties figure out a middle ground for a target and figuratively both take ten paces backward before negotiating. Some people want a percentage of the property, regardless of what their needs are. For example, many husbands will insist on a 50-50 split and some wives will choose a starting point of 70% or 65% of the assets, when it may be that certain assets would be preferable for one party, such as cash in the bank (with no tax consequences) versus funds in a retirement plan (with penalties for early withdrawal plus income taxes for the amount paid). Positional bargaining can make for easier negotiations, but the results may not be very helpful to either party.

6. A mentally ill participant. There are, of course, varying degrees of impairment from mental illnesses. Medication and counseling are often helpful for a patient. Sometimes having a close family member or friend present during the mediation can help the party be in a frame of mind to negotiate effectively. Without extra support and/or meds, a mentally ill party can scuttle the effort to settle.

7. A mediator perceived as biased for one side. Unless both parties have confidence in the quality and neutrality of the mediator, it is unlikely that the mediation will be successful. Some parties don't trust a mediator who is a male or one who is a female. The location of the mediation or the mediator's office may produce distrust by a party. If the mediator is seen as a friend of the other attorney or party, the mediator will probably not be acceptable. Attorneys should make sure that the mediator is someone who will be acceptable to both parties.

There are other potential pitfalls for mediation, but these are some of the major ones. If you are planning to go to mediation, you should work diligently in advance to be prepared, committed and ready to decide. Keep an open mind throughout the process so you have the best chance for success.

Wednesday, March 26, 2008

7 Tips for Witnesses

To be an effective witness requires preparation and forethought by the prospective witness. Ideally, there should be coordination and discussions with the attorney who is calling the witness. In the best situation, there would also be a rehearsal in a simulated courtroom environment, although that rarely happens in the ordinary case. The following are some basic steps that can be taken to prepare a witness to testify.

1. Review the facts, records or whatever will be testified about. Refresh your memory so that you remember the important facts and are clear about what happened. Sometimes, there is a long time between the event that occurred and when the testimony takes place. Be sure to review all the facts and any records about the event. It's a good idea to record your observations right after an event occurs so that you can review that later to help remember what happened.

2. Talk with the attorney about what to expect. This would include reviewing possible questions, objections and strategies. Have the attorney try to anticipate what will be discussed so you can prepare for it. There is nothing unethical about rehearsing your answers to some questions, but you need to be careful to avoid appearing too rehearsed because that might appear dishonest or not credible. It's nice to not be surprised. You can give a more accurate answer and be more helpful to a judge or jury if you have had time to think about an issue and have a clear memory about it.

3. Always follow the judge's instructions. The judge is in charge and you will not win an argument with him or her. You can hurt your credibility if you don't do something the judge ordered you to do.

4. Be sure to listen to the question before you start to answer. Think about your answer before you start giving it. This isn't a race -- you don't have to hurry an answer. Pause before answering. Be sure you pay attention and hear the whole question, and then answer. If you don't understand the question or didn't hear it clearly, you can ask that the question be clarified or repeated.

5. Pay attention to basic courtroom etiquette.
  • Don't argue with the other attorney, and especially not with the judge.
  • Don't interrupt the questioner.
  • If there's an objection, stop talking and then do whatever the judge tells you to do -- answer the question or don't answer it.
  • Just answer the questions. Don't ask a question in response.
  • Speak up so everyone can hear you.
  • Don't lose your temper. That will hurt your credibility enormously.

6. Don't try to carry the whole load--rely on an attorney. The attorney will have a fresh perspective and be able to look at the big picture. If the attorney does not think that asking you a certain follow-up question will help, the attorney normally will more on to more important things. If you think you got "hurt" by some questioning, it is better to let the attorney decide whether to get back into the issue. The attorney is in a better position to determine what is important and what is not essential. If you get cut off and cannot give a full answer when you are being cross-examined, let your attorney decide on whether to pursue it.

7. Tell the truth! Don't embellish, exaggerate or generalize. Attorneys and judges are usually very literal-minded. Don't guess at the answer if you're not sure. It is OK to say you don't remember something. Just be truthful.

If you follow these simple tips, your experience as a witness will be less stressful, more productive and more effective.

Tuesday, March 18, 2008

A Higher Calling -- Good Phone Etiquette

An issue that comes up occasionally is how to manage regular phone contact between a parent and a child when the child is with the other parent. Usually, it involves a younger child. Over the years, I have seen many battles over telephone contact. The fights are often proxies for the more direct issues between parents who are vying with each other to claim the relationship with the child. Sometimes, the conflicts will continue for years, with no apparent winner.

Courts have come up with some fairly standard solutions that will sometimes work. If the parents are really dedicated fighters, a court order is usually needed. The order must specify a lot of detail, or the parents will continue to fight over the dates, time, duration, and circumstances of the calls. For example, an order might provide that the non-custodial parent could talk on the phone with the child every Tuesday evening at 7:00 p.m. for 15 minutes. Sometimes, a decision is needed about whether or not it will be take place on a speaker phone.

In trying to decide whether to set up a pre-determined call, parents can easily get into the "what if..." game as a means of avoiding the calls. What if we're not home? What if we're eating dinner? What if they are playing outside with friends? What if Junior is sick? What if Sis has too much homework to talk? What if there are friends or relatives visiting? What if she is at a birthday party? What if he doesn't want to talk to Dad? A creative parent can come up with innumerable obstacles to the phone calls and still try to claim s/he is not opposed to the calls, if these issues can be resolved.

Here are some new tools that are being adopted to avoid some of the silliness and meanness that surfaces in connection with setting up contact between parent and child when the child is with the other parent.

1. Cell Phones. Fortunately, technology has provided many more alternatives to deal with whatever problems can come up. For starters, cell phones have made it possible to have a lot more contact at various times. While not every kid has a cell phone yet, I have it on good authority that every kid 14 or older has one; I know that my son was the last 14-year-old without a cell phone and he has one now. It is easy to make a call to a cell phone and not have to go through the other parent. The phone goes wherever the kid goes, so location and time are not such big factors anymore. Unless the child has very limited minutes available, the length of the conversations is not an issue. With even some 1st and 2nd graders now getting cell phones, and more kids having cell phones each year as they get older, there is a large group of kids who can easily talk with the non-custodial parent.

2. Another option is video conferencing. Like cell phones, more and more families have one or more computers with access to the Internet. With a small, inexpensive camera attached to the computer, it is pretty easy to set up a long-distance conversation with good picture and sound. It's a step up from just a phone call and is really helpful when the parent lives a considerable distance from the child.

3. Texting. OMG, it's something everyone can learn, and kids often seem more comfortable texting than talking. LOL. For adults who aren't familiar with it, and the lingo, you can learn quickly from your children (if you don't mind the condescension). With texting, you're not bound by time, dates or duration, so you can communicate often and casually.

4. Email. Most parents are probably familiar with email and use it often. They are comfortable with the process and have a computer or electronic equipment so they can email. For those without computer or email access at home or at work, there are free computers to use at public libraries and other places.

5. Leave Messages. Although this may be very old fashioned, but it still works. You can call, email or text a message to the child, or you could leave a hand-written note in your child's suitcase, backpack or books.

If you're thinking about utilizing one of these tools, here are some quick thoughts about how to avoid some of the problems that can develop.
  • Don't be intrusive. Don't insist that your preferred schedule must be followed if it seriously interferes with what the child or other parent has planned. Be willing to compromise and don't interrupt legitimate activities of the other parent or the children. Kids don't want to be in the middle of a battle between parents over schduling.

  • Don't be obsessive. Be flexible. Don't let this issue dominate your relationship with the other parent or child. Recognize that circumstances change and unforeseen events happen all the time. You may miss a call or chance to talk with your child, but there will be more.

  • Don't be daily. Let your children breathe. Don't try to talk with them every day, unless there is a special need.

  • Don't try to require a speaker phone or listen in on another extension. Unless there is clearly inappropriate behavior by the adult, allow your child and the other parent some privacy.

  • Don't participate in your child's conversations with the other parent, unless invited to do so. Parent and child are really wanting to visit with each other, not you. Certainly, don't interject your comments in the conversations between your child and the other parent and don't interrupt them.

A little common sense and courtesy will go a long way to helping your child deal with the difficulties involved in living apart from one parent. Although there may be hard feelings between parents, they shouldn't let them show. Instead, the parents should demonstrate good adult behavior by cooperating and allowing, maybe encouraging, contact between their child and the other parent. Everyone will benefit in the long run.

Thursday, March 13, 2008

Divorce "No No's" -- Don't Drag the Kids into the Divorce

A recent newspaper article highlighted some of the problems that can occur when kids are involved in their parents' divorce. That situation, involving famed wrestler/entertainer Hulk Hogan and his wife, is a little extreme, but the same type situations occur with just regular people.

Here's how children are sometimes brought into a divorce. Some may seem innocent, but they usually lead to bad situations. Some are active or direct and others are passive or indirect. They can all lead to emotional and behavioral problems for children.

1. Make a child into a messenger. This can be done a number of ways. A note can be sent through the child. A parent can tell the child in person to tell the other parent something. A parent, in a phone conversation, can ask the child to tell the other parent something. However it is done, there is a good possibility that the child will pick up on each parent's feelings (often anger) toward each other. The words used, the tone of voice and other non-verbal communication cues can be upsetting for a child. The nature of the other parent's response, both verbal and non-verbal, will also affect the child.

2. Let kids "overhear" comments about the other parent. This is a passive way to involve the children and subtly try to win them over to a parent's side. It can be distressful for children.

3. Let kids be present, in person or on the phone, to hear arguments about the kids. Parents can easily set up arguments to occur when the children are around, such as when the children are delivered from one parent to the other. It's hard enough for kids to transition from one household to another without adding more tension from an argument.

4. Make comments directly to the child about the other parent. Many parents are very blatant about making negative comments to a child about the other parent. That's often a sign of immaturity of the parent, but it can be very damaging to a child who may take the comments as an attack on the child since the child is part mom and part dad.

5. Discuss the "facts" of the divorce with the kids. Some parents believe their children are old enough and mature enough to know the "truth" about the parents' divorce. Often, the facts are not totally correct and reflect the natural bias of one parent. This is usually a way to try to win over the child to the parent's side. It took can be damaging to the child who hears a lot of negative comments about the other person who is half responsible for the child -- in effect, half of the child.

6. Inform kids, or let them know, about what they are missing out on because they will be with the other parent. This can be a little subtle. Maybe the parent is just disappointed because the child won't be around to go somewhere or do something with that parent, but it's upsetting to the child and it's unnecessary. It's also a way to try to put the other parent in a bad light because he or she isn't doing something exciting or because he or she won't let the child do something the child wants to do with the other parent.

7. Ask the kids to make choices between parents. This can take place on different scales, from choosing activities to choosing who to talk with to choosing where to live. That is too much responsibility for the child and puts the child in an inherently conflicted position. Those matters should be decided by the parents.

Thanks to Christine Bauer of the Florida Divorce & Family Law Blog for the tip on the story. You can read her comments about it here.

Friday, March 7, 2008

Preparing for Divorce: 7 Tips on Finances

James J. Gross, in his Maryland Divorce Legal Crier, had two excellent recent posts that included 11 tips for men and 11 tips for women to get ready for a divorce. I have used some of his ideas and some of my own to come up with the following 7 tips on finances for someone facing a divorce.

1. Have some funds available. Make sure that you have some cash or credit or money in the bank that you can use as you go through the transition from married to divorced. You will need money to pay bills, hire an attorney and purchase new things as a second household is created.

2. Prepare a budget and cut expenses. You can figure that most of the time there won't be enough money to go around. You need to be careful how you spend your money and make sure you don't waste it. Preparing a budget helps you decide what's important to you and when and how you will spend money. Part of the budget process should include finding ways to cut expenses. Reducing your spending and focusing on the essential needs will help you meet your basic needs.

3. Get control of you credit cards. Make sure you have some credit cards in your name so that you have something to use in an emergency. Make sure, as much as you can, that your spouse is not able to go crazy charging up the credit cards. That is a common strategy, especially if the cards are joint or the other spouse is the person primarily responsible for the cards. It is not really a good idea to take away all your spouse's cash and credit cards, but it will be a lot safer for you if you have control of the cards for which you are primarily liable. Just make sure your spouse has adequate resources to support himself or herself.

4. Plan to spend money for an attorney. At a time when a 35-50 page divorce decree is not unusual, it is a serious mistake to try to represent yourself in a divorce, rather than hire an attorney. If it is a matter of cost, you should check around for attorneys because there is a wide range of costs and payment arrangements; you can probably find an affordable attorney if you keep looking. The potential cost of not hiring an attorney is enormous!

5. Separate bank accounts. If you have joint bank accounts, they should be divided. Taking all the funds is not generally acceptable. You can probably take half the funds, but even that depends on the needs of both parties and what other assets are available. Separating the bank accounts will prevent your spouse draining all you funds and leaving you in the hole. Using restraint will make you look good to the Judge and the other side.

6. Create a list of your assets and liabilities. Getting started early gives you something to do with the nervous energy you have from going through a divorce. It's a good idea to gather records and prepare the list while everything is available and still fresh in mind. In most divorces, both parties are required to prepare sworn inventories. These are lists, in a standardized format, that include all the assets and liabilities of the parties. They become the basis for negotiation or a summary that often is introduced into evidence at trial (if there is a trial).

7. Keep your insurance in place. Remember why you have insurance. You need it for medical care and for your vehicles and home. Keeping the insurance will help save money on medical treatment, medicine and other related services. Keeping what you have at the outset will help avoid the accumulation of unpaid medical bills or repair bills that can occur if your insurance is canceled or lapses. Usually, the cost of maintaining the policy is not too great, especially when compared to cost of uncovered medical and other services. The insurance will have to be split up eventually, but it can be done later when both parties have time to sort things out.

If you are possibly facing a divorce, you should follow through with the actions outlined above to protect the family finances. Good luck!

Tuesday, March 4, 2008

Can My Spouse Take My Retirement?

In a recent post, in the Preventive Family Law for Nevada blog, Allison Herr wrote about a common question among parties going through divorce. The issue comes up in several variations. What happens to retirement funds? Can my spouse get my retirement? Will I have to withdraw funds from my retirement to pay my spouse? Will I lose retirement funds that I earned before marriage?

The questions arise in a variety of circumstances. A spouse may have earned some or all of a retirement account prior to the current marriage. One spouse may just not have much retirement to divide. Sometimes, one of the spouses has no retirement. Often, a person considers his or her retirement plan as personal resource which should not be divided because that person alone earned the benefits at that job. Even where both spouses have created retirement accounts, it is common for each party to want to keep all of his or her own account.

The starting point to remember is that under Texas law, virtually all retirement funds earned during a marriage are community property and are subject to division upon divorce. Retirement funds earned prior to marriage are not community property and a court cannot divide them unless both parties agree. Usually, spouses will work out an agreement on how to divide all the assets, including retirement accounts. Courts and attorneys usually try not to complicate matters by dividing every asset. Instead, they usually will divide the community assets by awarding complete assets to one party or the other and "equalizing" the division at the end.

It is a good idea to not become too emotionally attached to your retirement account. Such emotional attachment is not rational and puts you at a disadvantage in negotiating a settlement. If your spouse detects your feelings, he or she may manipulate you by threatening to take the retirement so that they can end up with something more valuable that they really want. In addition, the account is just an asset and a court really could award all or part of the community portion to your spouse. There's no reason to get upset over that unless the account has some special value or you expect a big increase in value in the future.

It is not necessary for a court to order a party to withdraw funds from the retirement account and pay them to the other spouse. A special court order, the qualified domestic relations order, can split an account without causing tax consequences or penalties.

The best way to approach the retirement accounts is to plan ahead and figure what your needs and goals are about retirement. Will you have sufficient assets to support you through retirement? Do you have separate assets? Are you realistically expecting an inheritance? Can you project a budget for your needs and living expenses? What amount of money now will it take to support you in the future? Do you want risky, but very profitable investments in your retirement account, or do you want a conservative approach that is safer, but less likely to grow significantly? It would actually be a good investment for you to get expert advice from a financial professional who is not trying to sell you a product. You can ask your attorney for a referral to help you find someone to help you plan. With careful thought and planning, you can protect your future, with or without a specific retirement account.