Ask The Mediator Today

Divorce is never easy.  It has taken a long time for you to make the decision to split up.  And even if you and your spouse are still on “good terms”, you’ll still encounter problems when you attempt to work out the details of your separation. Rarely is there equal bargaining power in a marriage. Plus, it is very difficult to make rational decisions when emotions are running high.  Few situations are as emotionally charged as the end of a relationship.

Mediation is a voluntary settlement process which allows you to control your own destiny rather than leaving your fate up to a judge who knows nothing about your or your spouse.  You need never step foot into a courtroom as all discussions are held in the safety and comfort of the mediator’s office.  Because of this mediation is far less costly in both economic and emotional terms.  Couples can save up to 90% over a traditional courtroom battle by using the mediation process.

HOW IT WORKS:

Divorce Mediation is a step by step process through which separating couples arrive at a fair agreement which is acceptable to both parties.  It is conducted under the guidance of a trained professional who helps the couple to make their own important decisions concerning their changing and uncertain future.  The mediator need not be a lawyer.  A psychologist with some knowledge of divorce law can be
quite effective in dealing with a couple going through a breakup of their marriage.

The mediator helps you identify the points upon which you already agree and  works from there, with cooperative problem solving, to work on the issues which are not so easily disposed of.  Some examples of typical questions which come up during the process are:

Who will the children live with?
How much visitation will the non-residential parent enjoy?
How much support will be paid?
What does support cover?
Who gets to stay in the house?
How will I get my money from the property we own?
How will our investments be divided?
Do I have to share my retirement?
Who will pay the credit card debt?
What about health insurance?
Will the kids get to go to college?

A skilled and experienced mediator is able to create a safe and cooperative environment which encourages open and honest discussion.  The mediator’s role is an impartial one, identifying issues exploring underlying interests, suggesting options and balancing power.

The mediator is neutral, does not represent either party and does not make decisions.  They are trained to listen and help both parties stay focused on the task at hand.  There is no need to being “dirty laundry” into the room or the discussions. Mediators encourage the couple to search for a solution to their unique problems and support them once a decision is made.

The mediation process culminates (usually after an average of five sessions) in the preparation of a Marital Settlement Agreement which details the specifics of your mutually agreed upon decisions.  This agreement is the basis of the divorce decree.

A Final Note

It is important to understand that mediation is not the arena for deciding whether or not to separate or divorce.  That should be done in the office of a mental health professional.  However, once the decision is reached, mediation can help the separating couple and their children avoid unnecessary scars and return much sooner to the business of living.

A Fair Way Mediation Center

The principal mediator at A Fair Way Mediation Center is Richard M. Gordon, B.A., M.A. and J.D.  Mr. Gordon is a highly trained mediator. In addition to mediating divorces he has served as a mediator, arbitrator, consensus builder, trainer and consultant to individuals, corporations, foundations and public organizations.

Mr. Gordon is a member of the Academy of Family Mediators, the Society of Professionals in Dispute Resolution and C.A.L.M.  He is also on the panels of several associations including NASDAQ and the San Diego Superior Court.

Mr. Gordon’s clients welcome his ability to establish an atmosphere of trust and cooperation.  He encourages creative problem solving, assists in making issues clear and intervenes when emotions hinder the mediation process.

For more information about A FAIR WAY MEDIATION CENTER, look at the web site at www.afairway.com.

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I came across this article and found it very interesting:

Christi McMurdie
Attorney and Mediator
Tempe, AZ

It was very early in my legal career as a family lawyer that I concluded there had to be a better way to help people resolve the conflicts that arose with their unique divorces.

These problems usually, but not always surrounded parenting time or the division of assets and debts.

What we, as divorce lawyers, were doing was very expensive, draining and most of the time left the clients with no ongoing remedy in dealing with each other after we, the lawyers left the scene.

Right after I made this discouraging conclusion, a good friend of mine was heavily involved in a new program at the courts, an ADR (alternative dispute resolution) program that provided training.

I signed up and then took my first foundation training in Mediation. That was 13 years ago.

Here we are in 2009 and many divorcing people still don’t know about mediation as an alternative to divorce litigation.

So I am happy to help people learn about their options. Sometimes this means people have to change their expectations and their perceptions about divorce.

In an issue of US News and World Report, I found that an article last year entitled “Best Careers for 2008” listed Mediation with a national annual median income of $66,800.

Mediation is a viable and growing field separate from litigation for lawyers and non lawyers alike and benefiting thousands of people to peacefully and powerfully resolve conflict.

Control—Mediation belongs to the parties. The disputing parties control the process, scheduling, costs, and outcome of the dispute. See the example described below.

Less Adversarial—The mediation process is informal. It is less confrontational than arbitration or litigation because each of them is encouraged to present their position and experience and emotional issues are allowed to be expressed in mediation.

This enables the parties to look for other remedies but what are traditionally prescribed in a court setting.

Preserves Options—Parties can enter into mediation without jeopardizing their option to arbitrate or litigate.

If the parties need to take a remaining issue or two to trial because they simply cannot resolve it, they have minimized the litigation and preparation time by reaching agreements on the other issues.

As an attorney-mediator, I often have to remind the parties that if they need a lawyer, I am disallowed because I have already acted as a mediator for BOTH parties and there would be a conflict of interest.

Swift Settlement— Mediation. Mediation can be designed to support the comfort levels of the clients.

Two hours per session is recommended for divorce mediation because emotions run high and this allows the parties to have time to consider issues and agreements between sessions.

After the initial petition is filed, the parties cannot file their final decree for two months so the sessions are usually conducted during this required period.

In business mediation, most disputes can be heard and resolved in one day.

Lower Cost —Mediation usually entails lower legal and preparatory costs, there is minimal interruption of business or personal life, lost productivity is kept to a minimum, the mediation sessions are tailored for the parties schedules and the fees and expenses of mediation are usually cumulatively lower than the cumulative cost of litigation.

Preservation of Business Relationships—By reaching an early resolution with minimal financial or other strain on either party, the chances for preserving family and/or business relationships are greatly enhanced.

Protects Privacy—Mediation is subject to confidentiality and in fact, a mediator cannot be called to testify in a later court proceeding due to laws that protect the confidentiality the parties and the mediator enter into at the beginning of the mediation process.

Creative Solutions—Mediators help the parties craft creative solutions that involve emotional remedies like an apology, assistance on one of the prior joint assets and creative parenting arrangements.

Low Risk—Settlement potential is high because the parties are in agreement in utilizing the mediation process. The case proceeds quickly.

The cost is modest and there are benefits even if a settlement is not reached.

Stay out of Court – By using the Consent Decree process for your final divorce document, you will not have to go to court at all.

One of the biggest fears divorcing folks immediately have is that their divorce will be “run away” by their lawyers due to discovery rules of disclosure and the due diligence required once the lawyer is retained.

The horror stories are legion. Mediation is designed so that control stays in the hands of the clients.

In the April, 2008 Chandler Times, local journalist Shana Hogan reviews of the pitfalls of reaching a prenuptial agreement demonstrates this point. Lona Smith and Zack Schiffman went rounds over their 55-page prenuptial agreement and spanned 737 days, two canceled wedding dates, and five fired attorneys.

“It wasn’t until they decided to stop going through their attorneys and sat down and decided on the terms together, that were able to draft a document they could both agree on.”

Finally, they went off alone without their lawyers and conducted their own mediation, regaining the control to make their own joint decisions and they resolved all of the conflicted issues in their prenuptial agreement.

Miraculously, they are married now and it was because they took back control.

After I received my initial mediation training, I volunteered in the justice courts for about two years.

This was great training; however, the raising awareness of the negotiations process while having been trained as a mediator amplified my skills.

Later, my skills escalated more when I completed professional coach training through the Adler School of Professional Coaching.

We can all continue to better our communication because we ALL have to communicate no matter your work or your family life.

Anyone who obtains training in the foundations of mediation will enhances all of their business and interpersonal communication and would assist the success of both.

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Child Radio Personality Comes Full Circle
Former Star on “Ask the Kids” is Now Divorce Expert on “Ask The Expert”

SAN DIEGO (January 13, 2008) – Nearly a half century ago, little “Richie” Gordon was a favorite on Rochester, NY’s TV show “Ask the Kids.”  Week after week his advice on juvenile behavioral problems was “lock ‘em in the closet.”  Today, as a successful mediator he has returned to his true calling with a role on “Ask The Expert.”

His firm, A Fair Way Mediation Center, a mediation center specializing in offering divorcing couples a way to save money by staying out of court, has been selected by Clear Channel Broadcasting as one of its initial members of its new on-line service “Ask the Expert.”

A Fair Way’s primary mediator is Rich Gordon, M.A., J.D., who left a successful law practice “back east” to focus on mediation.   As one of the first Mediation Centers in San Diego, the organization has had major impact on the growth of mediation as an alternative to judicial interventions.

“At A Fair Way we help couples resolve the ending of their relationships without having Winners or Losers but rather reaching a compromise that satisfies both parties,” says Gordon.  “On ‘Ask the Expert’ couples thinking about going through the divorce process, or those who are interested in pre-nuptial or legal separation agreements, may ask pertinent personal questions which we will be happy to address on line.  Today we fully understand that locking yourself in a closet doesn’t really make matters go away.”

According to Gordon, with both members of the couple willing to participate in the mediation process, there is more chance of a successful outcome. Heavy legal fees normally involved with lawyers and protracted litigation are prevented in mediation because costs are usually lower and clients can “pay as they go,” letting you proceed with the divorce at the same pace as finances allow.
“It is not surprising that many couples are now choosing divorce mediation to negotiate their own separation agreements,” says Gordon.  “This applies to both same-sex relationships as well as traditional marriage.  Couples dealing with Property Division, Retirement Distribution, Debt Repayment, Spousal and Child Support and Children Visitation and Custody can all benefit from breaking up nicely.”
The “Ask the Expert” link is available on all the Clear Channel radio station web sites, (http://tinyurl.com/afairway) or A Fair Way Mediation may be contacted directly at www.afairway.com or by calling 619-702-9174.  The offices are located in downtown San Diego, One America Plaza, 600 W. Broadway, San Diego, CA 92101.

Even when you have known for years that divorce is inevitable, it is still difficult. When two people reach a point where they can no longer live together, divorce may be the only thing that can put an end to an uncomfortable situation. After you decide a divorce is the only solution, it is best to dissolve the marriage quickly and smoothly.

Everyone has heard at least one divorce horror story. After 40 years of marriage, when their oldest child finished college, a friend of mine and his spouse divorced. They sat down and discussed the situation and decided to split everything down the middle so that the divorce could be as friendly as possible and avoid causing anyone grief. The husband realized that they had built up a large amount of assets, got greedy, and decided he wanted more than half.

He felt he was entitled to retain the bulk of the money because, as a doctor, he had earned a substantial income. His wife used to work in the medical office, then got a real estate license and ran the apartments they had purchased as an investment. She later gave birth to their two children and took care of their enormous house and the family. She believed that she was entitled to half of all of their assets.

They had planned to start divorce proceedings in September, when the youngest went back to college, so that things would be normal during the summer and they would all still be together. In July, the husband hired a lawyer that you could liken to a pit bull. What ensued was a calamity. A seemingly simple divorce became a bitter battle. All of the family members suffered from the emotional strain. The children were in their twenties, but they were still devastated by the divorce.

The husband’s lawyer fought over every little thing and extended the divorce, which made everyone’s pain worse, and in the end everything was split right down the middle anyway. In California all couples split their assets evenly.

A divorce does not have to be nasty or miserable for the entire family. Mediation allows for a neutral third party to help with the settlement arrangements when a couple divorces. The legal system allows for mediation to assist in negotiating an equitable settlement, to settle the details of visitation and child support, and to help make other important decisions needed during a divorce. Research shows that couples who use mediation during their divorces are happier with the end results. Reduced time in court and lower attorney fees are some of the benefits of divorce mediation.

When couples realize that divorce is inevitable, they should both look for sound legal advice. They should try to find lawyers that will work with them and take their needs into consideration. They should also look into mediation to see if it will meet their needs so that they can save time, money, and emotional strain.

By:  Andrew Tenco, posted in CyberLaw

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By Monica Hatcher

RISMEDIA, Dec. 8, 2008-(MCT)-During the real-estate boom, couples who divorced would fight over who got the house, betting that the winner could get rich from rapidly escalating prices. Spouses plunked down thousands to buy out their partner. Disposing of the “marital asset” was easy, since homes were selling in a day or two for inflated prices.Now, in a twist on the classic divorce dispute, houses have become hot potatoes for couples divorcing during the downturn.

‘It’s like, ‘You take the house!’ ‘No, You take the house.’ ‘I don’t want it, you take it,’” said Drew Sheridan, a veteran divorce lawyer in Kendall, Fla.

Falling property values have turned many homeowners upside-down on their mortgages, meaning they owe more than their homes are worth. Negative home equity has made it much harder for divorcing couples to disentangle their finances.

In some cases, they are abandoning their property to foreclosure because neither can afford the loan payments and they can’t sell the house for what they paid for it.

Or they are still living together as platonic “roommates,” confusing distraught children and keeping everyone from healing and moving on.

“It has become an epidemic. We have a really, really serious problem,” said Elinor Robin, a family and divorce mediator in Boca Raton, Fla.

Many family lawyers have had one or more cases in which clients were wrangling over homes that have become a financial millstone.

“Instead of an asset where they used to fight for occupancy, possession and ownership, they’re now fighting to abandon their personal interest,” said William Koreman, a divorce lawyer in Hollywood, Fla. “Neither of them wants the property because they would be accepting a huge liability.”

In extreme cases, a homeowner has used the mortgage as a weapon of spite, deliberately sabotaging his or her own credit to destroy the credit of the former partner, said Adam Franzen, a Fort Lauderdale, Fla., family lawyer.

Even when couples try to play nice, their disintegrating financial condition turns an amicable split into a war of the roses.

After her divorce in May, Jean Kouch took sole responsibility for paying the note on an investment property that she and her former husband had bought several years ago in Pembroke Pines, Fla. Kouch moved into the house with their 10-year-old son.

Even when she was working, she struggled to cover the $3,500 monthly payment. After she was laid off by Miami-Dade County in August, it was impossible to keep up. The house went into foreclosure last month-and her ex’s name is still on the loan.

The relationship went radioactive.

“He’s angry now, and I know this is a part of it,” Kouch said. It’s hard to feel guilty, she said, especially since she advised him not to buy a second home in the first place.

For couples going through a toxic split-up, a dent in the credit score is sometimes the least of their concerns.

“When people want to get a divorce, they really want to get a divorce. They don’t really care about the money,” said Scott Ferris, a Pinecrest, Fla., divorce lawyer.

A Broward County (Fla.) Circuit Court general magistrate approved a joint ownership arrangement in which the husband remained a co-signer on the mortgage while his ex-wife and their 4-year-old daughter lived in the house.

The plan was to sell the home when the market recovered.

But because he was paying half the mortgage, the husband felt that he could drop in whenever he wanted-without knocking-to raid the fridge, do his laundry and watch TV.

The wife wasn’t too happy with that arrangement.

“When people are stuck in a house, so much gets put on hold,” said Robin, the Boca Raton mediator. “They are living in limbo. They are not really free to date other people.”

Fed up with the unexpected company, the wife finally agreed to sign over the house to the husband. He’ll make the monthly payments, but she remains on the mortgage-a worrisome thing, since she’s not sure that he can cover the $2,000 a month.

“Peace of mind is a lot more important than a piece of land,” said Danielle, 33, the wife, who asked that her last name not be published to avoid jeopardizing the arrangement.

“If it goes into foreclosure … you have to live and move on. I don’t think anybody is concerned about their credit anymore. Everyone’s credit is shot.”

Couples all over are facing similar choices.

“People are taking a hit financially as opposed to holding their noses and staying married,” said Ferris. “I’d say one out of 10 can stay together long enough to survive the bad real-estate market.”

In the past, the spouse keeping the home would refinance the loan under his or her name. But if your home is worth less than your mortgage balance, you can’t refinance without coming up with a load of cash.

Consequently, lenders have a big stake in marital harmony.

“It benefits the lender to have more people obligated to the loan,” said Ghenete Wright Muir, Danielle’s divorce lawyer. “They aren’t going to allow someone to be taken off.”

When Kellie and Ken Kuecha decided to untie the knot, they opted to live together-but separately-under the same roof until the market recovers.

Kellie Kuecha said they have separate bedrooms in the Boca Raton home and are dating other people.

The arrangement has worked because their children are young and the couple decided to devote themselves to personal growth, which has helped them live together as best friends, said Kellie Kuecha, whose business offers “success coaching” and personal development for women.

“We bought our home as an investment,” she said. “And that is still our intention. If we sold right now, it would be like selling stock short.” She added that after several renovation projects, there was little equity in the property.

“Everything we have financially is in this house,” said Ken Kuecha. “So, we really do not have a choice to let it go now.”

That kind of long-term thinking is the key to getting through a marital breakup without destroying your finances, said Koreman, the Hollywood divorce lawyer.

Duking it out in court may only lead to bloated legal fees, further emotional distress, and-if the market tanks even further-additional reductions in the value of the home.

“They would just be throwing good money after bad,” Koreman said. “At that point, there won’t be a house to fight over.”

© 2008, The Miami Herald.
Distributed by McClatchy-Tribune Information Services.

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Unhappy couples staying together as economy makes divorcing too costly.

The economic crisis may be doing what pastors, family therapists and matrimonial counselors have long struggled to accomplish: keeping troubled marriages together.

Marriage counselors and divorce lawyers nationwide say more distressed couples are putting off divorce because the cost of splitting up is prohibitive in a time of stagnant salaries, plummeting home values and rising unemployment.

While the stress of economic uncertainty often worsens already shaky unions, it also can make couples more financially dependent on each other, said Pamela Smock, a researcher at the Population Studies Center at the University of Michigan in Ann Arbor.

“Anything of this magnitude that’s going to affect millions of people does not bode well for all sorts of families,” she said. “It could keep unhappy couples together.”

That’s what happened to a client of Robi S. Ludwig, a psychotherapist in New York.

“I had a woman say to me: ‘My God, I can’t stand my husband. Every day I just want to leave him, but I can’t afford it,’” said Ludwig, co-author of “Till Death Do Us Part,” an examination of severely dysfunctional marriages. “So they are deciding to stay together.”

eff Grumley, a marriage counselor in Loves Park, Ill., north of Rockford, said he had seen a 25 percent jump in business in recent months as couples tried to save their marriages, and their money. Ten sessions cost about $1,000, Grumley said — not exactly pocket change, but far better than the tens of thousands of dollars a divorce costs.

“I think people feel desperate,” Grumley said.

2 households? ‘They can barely pay for one’
Divorces have always been expensive. For a contested proceeding that goes to court, a couple with at least one child can expect a divorce to cost anywhere from $53,000 to $188,000, according to calculations based on census data by the Web site Divorce360, which factored in attorneys’ fees, financial advice, counseling and real-estate costs for buying or renting separate homes.

Often many of those expenses are recovered when a couple sells their home and divides the proceeds. But the disastrous real-estate market is leaving many homeowners owing more on their mortgages than their properties are worth — turning what would normally be their biggest marital asset into a liability.

“They also can’t go out and get a credit card or personal loan to pay attorney fees or to even try and find a piece of real estate because the lending market is tightening down on them,” said Kevin Hughes, a criminal and family lawyer in Cincinnati.

The evidence for a decline in divorces is primarily anecdotal, because national marriage and divorce statistics for 2008 aren’t available. But in some jurisdictions that report semi-annual figures, the trend is being borne out.

In Chicago, the Cook County Circuit Court system reported that divorce and separation filings fell by 600 — or roughly 5 percent — during the first nine months of the year, compared to the same period last year. Comparable drops have been reported in Fresno County, Calif., and Comanche County, Okla.

In South Florida, where the condominium-heavy Miami area has been described as ground zero of the mortgage crisis, Miami-Dade County reported an 18 percent drop in divorce filings from January to May, compared to the same period last year. Perhaps not coincidentally, average real-estate prices in the area fell about 20 percent over the same period.

“What the judicial officers are telling us is that people who do come in are saying they can’t afford the cost of splitting up and going into two households — they can barely pay for the one,” said Scott L. Rubin, a marital and family lawyer in Miami who is chairman of the Family Law Section of the Florida Bar.

“The housing market is down, it’s hard to sell, and when you can sell, you’re selling it at a depressed price, so a lot of people are deciding … ‘It’s not worth it to do it (at) this time. Let’s stay together. Let’s try to work through our problems and hope that the economy will spring back,’” Rubin said.

2008 downturn a reversal of history
Historically, divorce rates tend to rise during tough economic times, counselors and lawyers said, citing a 17 percent spike in divorces during the 1997 recession. But what makes this downturn different is its severity, they speculate.

That view draws support from the fact that a decline in divorces also was observed from 1930 to 1935, during the depths of the Great Depression, according to Census figures.

Divorce rates “weren’t high, but they went down,” said Jay D. Teachman, a professor of sociology at Western Washington University in Bellingham, Wash., who has studied the period. “People couldn’t afford to divorce.”

Today, with housing prices so low, it’s again cheaper for couples to “work out your differences now,” said Clinton J. David, a lawyer specializing in complex business transactions in Dallas.

“Instead of you and your soon-to-be ex-spouse fighting over how to divide up the profits from the sale (of a home), you could actually, unfortunately, end up fighting over who’s going to pay off the lender because the loan on the home is actually more than the value,” he said.

For divorce lawyers, the economic slump is beginning to have a real impact. In a nationwide survey of divorce lawyers by the American Academy of Matrimonial Lawyers, 37 percent reported a drop in divorce cases during the recent tough economic times, nearly twice the 19 percent who said their business had grown. The rest cited little or no change.

“These folks are just scared, and they can’t go through with the divorce process, so yeah, they’re staying together,” said Hughes, the family lawyer in Cincinnati. “They’re staying together to try and make it work, but unfortunately living as an unhappy married couple.”

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