Some attorneys make the mistake of engaging in “retainer talk.” This has long been a practice among less scrupulous lawyers. They try to convince their clients they have the best legal strategy- even if they don’t. However, over-promising with dishonest “retainer talk” when speaking with leads can lead to disastrous consequences.
When it comes to a law practice, one thing is certain: your clients will expect (and even demand) results. Attorneys feel pressure to sell more than they can deliver to attract business. But as you know, legal outcomes are hard to predict. As a result, overselling is never a good plan.
Defining the term “retainer talk” and why it can damage your case
Attorneys describe “retainer talk” as talks between a lawyer and potential client where the former makes promises to secure the client’s business. It can range from simply inflating the lawyer’s abilities to making empty promises about case outcomes.
Although some attorneys may think retainer talk is an acceptable business practice, it is actually a damaging habit causing serious repercussions for both lawyers and clients. When engaging in this type of conversation, lawyers forget their clients want win cases but don’t want their lawyer to lie to them. Truly, honesty about potential outcomes is best.
When clients enter into an attorney-client relationship based on unrealistic estimations set by attorneys, they will be left disappointed if expectations are not met. Of course this can lead to costly fee and malpractice disputes. Because making unrealistic guarantees or expectations can damage trust between lawyers and clients, it can get you sued!
Tips on how to avoid “retainer talk” when preparing for a lawyer-client meeting
Lawyers face a delicate balance when they offer advice to their clients: providing sound, knowledgeable counsel without losing the client. There’s a balance for lawyers to ensure their client fully understands the legal process without turning the client off and losing the case. However, it is less likely you will regret unvarnished, honest advice. Contrastingly, overly-optimistic promises tend to get lawyers in trouble.
One answer is simpler than you might think – preparation! Researching a case before taking it on can help attorneys understand the lay of the land and help them in determining an action plan for their clients. Moreover, working through potential questions and root causes prior to a meeting can provide vital context and allow lawyers to provide critical guidance that can make all the difference. Ultimately, putting in the effort beforehand enables attorneys to stay focused on the goal of providing wise counsel without running into “retainer talk”.
Showcasing alternative strategies to communicate with clients without over-promising results
Lawyers can be notorious for their hyperbolic language when dealing with clients, leading to oversold expectations. Thankfully, there are alternatives to this practice.
Never underestimate the persuasive power of the phrase “it depends”! Such a statement still allows lawyers to present an array of options while underlining caveats and encouraging balance in decision-making. Moreover, dedicating time to educate clients on the legal spectrum and risk involved create more meaningful relationships while setting healthier expectations—win-win!
Ideas on how to maintain ethical standards while maintaining good relationships with clients
Lawyers need to work with their clients effectively while also ensuring they are maintaining the highest level of ethical standards. That’s a tricky tightrope to navigate!
It is important to lay down the ground rules early, prioritizing the needs of the client while staying within legal boundaries. Create achievable goals where both parties understand what is expected, and anticipate potential pitfalls and review options for solutions. Ultimately, lawyers will build up a good rapport with clients as they trust that their needs will be met ethically.
Clients feel valued when they are heard. As such, it’s essential for lawyers to not just pay attention but also remember clients’ preferences from meeting-to-meeting. This helps continue to foster positive client relationships. Rather than take a back seat and depend completely on clients’ instructions, lawyers should proactively advocate for policies that promote professional conduct and trust on both sides.
Ultimately, a lawyer should make their relationship with the client simple and straightforward. Refraining from “retainer talk” is an important way to preserve that relationship. As you strive to practice law responsibly and follow ethical guidelines, always keep in mind the importance of remaining transparent, honest, and forthright when speaking with clients. Don’t fall into the trap of engaging in “retainer talk”—it’s not worth it! Remember a legal professional’s responsibilities extend beyond achieving positive case outcomes for the clients. Good ethics will take you far in this profession. You’ll be much better off being an unbiased adviser than promising something you can’t deliver.
When it comes to settling a conflict through the mediation process, you want to make sure every word you use is meaningful and purposeful. However, for those who are not familiar with the world of mediation, there are some words which can have a catastrophic effect on settlement possibilities. In this blog post we will take an in depth look at six “toxic” words commonly seen during Mediation proceedings so both clients and lawyers alike can avoid any potential mishaps along the way.
The power of words during mediation and why it’s important to watch what you say
Mediation can be a powerful force in resolving conflicts, but it also requires some finesse to get through. One of the most important things to consider when in a mediating situation is the power of words. What you say could serve as the foundation for an agreement, or hold enough weight to derail any progress made thus far. It’s essential to be aware of both the literal and figurative meanings of the words used during mediation because they can have a significant influence on how the case concludes. Thoughtful discourse and respectful communication are paramount to facilitate a successful negotiation. Basically, make sure your words don’t end up doing more harm than good!
First Word – “Never” – Why this word can cause an impasse in a settlement
The word “never” when used in settlement negotiations is a surefire way to put an immediate stop to discussions. No matter what scenario or context, it is totally unproductive and it communicates a complete unwillingness to compromise. In fact, throwing the word out there during mediation could be viewed as a declaration of war. By immediately setting an adversarial tone, “never” will do little more than send both parties back to square one.
Yes, sometimes negotiations require a firm stance. But, stepping away from the table with hardline terms like “never” achieves nothing. Let’s try leaving such inflammatory language at the door and work together for a positive outcome.
Second Word – “Can’t” – Why this simple word can shut down negotiation progress
“Can’t” is a deceptively powerful word! We often think of it as a harmless negation – an easy refusal, or a way to retreat from an uncomfortable situation. In the context of settling a case through mediation, however, “can’t” carries a nasty burden. By simply saying “I can’t”, a party can give an impression they are unwilling to go any further in negotiation. Such a conclusion could easily be the death knell for any chance of resolution.
In contrast, choose phrases to build toward mutually beneficial negotiations, Phrases such as “let me investigate that further” or “let me discuss this with my team” communicates a person may not be thrilled with a proposal, but leaves open the possibility of progress. Remember – when it comes to mediation, “can’t” can cost you!
Third Word – “Contingency” – How using conditions hinders success
When mediating, it’s important to keep an open mind and avoid placing conditions on the desired outcome. The word “contingency” is especially discouraged for this reason. Even if two parties theoretically agree during mediation, introducing expectations or contingencies can break any already formed agreement. After all, in an ideal world the goal of a negotiation would be to come to one clear compromise, not several small ones all attached with individual strings! Ensuring there is no hidden agenda or “if-then” policies will guarantee that everyone is on an even playing field and working towards one common goal – settling a case.
Fourth Word – “Fair” – Why “Fair” is the F-word.
When it comes to mediation, “fair” is the F-word because all too often, both parties focus only on what is fair for them instead of looking for solutions. This idea of fairness is subjective and can create roadblocks in reaching agreements that benefit everyone.
Instead of focusing on “fair”, turn to negotiation skills and compromise. This will take you much further than the debate about who deserves what. Aiming for a good business decision you can live will take you much farther than focusing on what is or is not fair. After all, when two parties work together to create an outcome that is good for both sides, everybody wins.
Fifth Word – “Fault” – assigning blame is a recipe for disengagement
The fifth word to avoid in attempted case resolution through mediation is “fault”. In the quest for peace and agreement between parties, pointing the finger will earn little progress. All too often, attempts at assigning blame only serve to destroy the chances of each side getting what they want in a peaceful manner. It’s important for successful negotiation to keep blame out of the equation. It’s a recipe for disengagement that won’t yield good results!
Sixth Word – “Should” – Why the tyranny of the “shoulds” can destroy progress
When it comes to settling a case during mediation, the word “should” is often like an uninvited party crasher – it can derail progress and throw a wrench into negotiations. By putting expectations on the other person or making one side feel their choice is wrong, the guilt of a “should” can create tension and damage any idea of compromise. Committing to the tyranny of shoulds can render both parties unable to move beyond limited thinking and prevents creative solutions. As such, it’s wise counsel to avoid “should” while mediating; unless, of course, you like adding fuel to an already tense situation!
The Six Toxic Words to Destroy Your Negotiation
Never
Can’t
Contingency
Fair
Fault
Should
Need some tips for how to make and receive proposals?
Remember, there is no such thing as impasse in mediation! When you are stuck, it doesn’t mean you storm away from the table and declare a failure. It just means you and your mediation team haven’t found the right proposal yet.
Download our helpful "Summary for Accepting and Receiving Proposals".
Here’s a great little cheat sheet you can use during negotiations to become a pro at negotiating. Follow the tips on this sheet and make specific and plausible proposals based on rational evaluation rather than emotions.
As the ability for parties to reach a settlement often lies in the hands of what is said, the six toxic words explored in this post are ones that should be watched out for if you want to stay on track during a mediation. Although finding the right combination of words is challenging, avoiding these six particular words will help ensure successful negotiations during mediation and a positive outcome.
Know any other toxic words?
These aren’t the only toxic words which can ruin a mediation. Which ones can you identify? Share your toxic words and phrases in the comments!
Referring clients to a mediator is an important part of providing quality legal services for family law attorneys. Mediation offers multiple benefits for both the attorney and their client, from reduced workloads to improved settlement rates. It can also help to promote the personal well-being of attorneys by avoiding stressful court proceedings and contentious negotiations. By grasping potential advantages of mediation, family law attorneys can make informed decisions about when to refer their clients and how best to proceed from there.
Let’s dive in!
Referring Clients to Mediation Reduces Attorney Workload
Referring clients to a well-trained divorce mediator can reduce the workload of attorneys significantly. It avoids lengthy litigation processes which can take up lots of valuable time and resources.
There is a growing body of research that supports the idea that attorneys can save time by referring to mediation. One study found that in civil cases, the time to disposition was on average 11.5 months for cases that went to trial, but only 7.5 months for cases that were settled through mediation [Nolan-Haley, J. (2015). The effectiveness of commercial mediation: An empirical analysis. Harvard Negotiation Law Review, 20, 79-110.] This indicates that referring clients to mediation can lead to a quicker resolution of the case and less time spent in court.
Another study found that in divorce cases, mediation took an average of 110 days from start to finish, while litigation took an average of 457 days [Gwynn, J. M., & Struckman-Johnson, C. (2012). Time to divorce: A comparative study of mediated versus litigated divorces. Journal of Divorce & Remarriage, 53(8), 615-632.] This suggests that referring clients to mediation can significantly reduce the amount of time that attorneys spend on a case.
A third study conducted by the Minnesota Office of Dispute Resolution found that mediation typically takes 4-6 hours, while litigation can take months or even years to resolve Minnesota Office of Dispute Resolution. (2019). The cost and time savings of alternative dispute resolution. Retrieved from https://www.mncourts.gov/mncourtsgov/media/assets/documents/Publications/ADR-study-2019.pdf.] This research suggests attorneys can save significant amounts of time by referring clients to mediation rather than engaging in protracted litigation.
Overall, the research supports the idea that attorneys can save time by referring clients to a mediator. This can lead to quicker resolutions, less time spent in court, and less time spent on each case.
Referring Clients to Mediation Improves Cost Efficiency
Mediation is typically cheaper than traditional court proceedings, meaning that clients will save money in the long run. This cost efficiency also helps promote client satisfaction since they won’t have to pay as much for their legal services.
There is ample research supporting the notion that mediation is cheaper than litigation. For example, a study by the American Bar Association found the average cost of a mediated divorce was $5,000 to $7,000, while the average cost of a litigated divorce was $15,000 to $20,000 [American Bar Association. (2017). What does it cost to get a divorce? Retrieved from https://www.americanbar.org/groups/public_education/resources/law_issues_for_consumers/divorce/.]
Overall, the research clearly indicates that mediation is a much more cost-effective option than litigation in resolving legal disputes. As such, referring clients to a mediator improves the value for the services rendered.
Increase Client Satisfaction by Referring Clients to Mediation
Mediation allows clients to resolve their disputes quickly and efficiently without having to endure the stress associated with court proceedings. This can help improve levels of client satisfaction and make them more likely to recommend your services in the future.
What’s more, ample research studies shows higher client satisfaction when a case settles as compared to when it goes to trial. [See James E. McGuire, “Factors associated with satisfaction with legal services among persons who filed for divorce in the United States in the late 20th century,” Law and Society Review 38, no. 4 (2004): 793-818; John Lande, “Lawyering with planned early negotiation: How you can get good results for clients and make money,” Dispute Resolution Magazine 10, no. 3 (2004): 7-10; Noam Ebner, “Client attitudes towards lawyers’ negotiation practices: The role of perceived fairness and satisfaction with the dispute resolution process,” International Journal of Law, Crime and Justice 55 (2018): 77-92; and Daniel W. Shuman and Robert A. Baruch Bush, “Understanding the lawyer-client relationship: An empirical investigation of client expectations and satisfaction,” Law and Society Review 23, no. 2 (1989): 343-384.]
So, settling cases improves clients’ satisfaction with their attorneys. Because mediation helps attorneys and clients settle, referring clients to a mediator will improve client satisfaction.
Using Mediation Improves Settlement Rates
Divorce cases in mediation have higher settlement rates than those pursued through litigation. According to research, cases are more likely to settle with a mediator. Here are a few studies that support this:
A study by the American Bar Association found that mediation resulted in settlements in 85% of cases, compared to 58% of cases settled without mediation. (Reference: American Bar Association Section of Dispute Resolution, “ABA Section of Dispute Resolution Fact Sheet on Mediation”)
A study published in the Harvard Negotiation Law Review found that mediation was successful in resolving disputes in over 70% of cases studied. (Reference: “The Positive Impact of Mediation: A Study of the Resolution of Legal Disputes in the United States” by Stephen Goldberg, Jeanne Brett, and Beatrice Blohorn-Brenneur, Harvard Negotiation Law Review, Volume 15, Spring 2010)
A meta-analysis of 83 studies on the effectiveness of mediation found that mediation was effective in resolving disputes across a wide range of contexts, including legal disputes. (Reference: “The Effectiveness of Mediation: An Independent Analysis of 83 Studies” by James Alfini, Victoria Hopper, and Craig McEwen, Journal of Conflict Resolution, Vol. 50, No. 1, February 2006)
These studies suggest that mediation can be a very effective way to settle legal disputes. In fact, it may be more successful than traditional litigation or negotiation. This means clients who mediate may be more likely to reach agreement on all issues. As a result, resolution is quicker for all involved.
Enhance Attorney’s Personal Well-being
Referring clients to a mediator can also benefit attorneys personally by reducing the stress associated with being in court or dealing with contentious negotiations. This can help attorneys maintain their professional composure and continue to represent their clients at a high level.
There are studies suggesting that settling cases rather than going to trial can reduce stress and anxiety for attorneys. A study conducted by the American Bar Association (ABA) found that trial attorneys experience more stress than their colleagues who do not go to trial. The study found that attorneys who spend more time in trial preparation, including conducting pretrial depositions and engaging in other trial-related activities, experience more stress and anxiety than attorneys who do not engage in these activities as frequently. [American Bar Association. (2009). The keys to a happy practice: Satisfaction and success in the law. Chicago, IL: American Bar Association.]
Another study published in the Journal of Applied Psychology found that high levels of stress and anxiety can impair an attorney’s cognitive abilities, including their decision-making and problem-solving skills. The study found that these impairments can be particularly pronounced in attorneys who are preparing for trial or participating in a trial. [Behan, B., & Hill, S. E. (2015). Legal minds under stress: Lessons for better lawyering. Journal of Applied Psychology, 100(6), 1645–1661. https://doi.org/10.1037/apl0000016]
A separate study conducted by the ABA Section of Litigation found that attorneys who engage in alternative dispute resolution (ADR) techniques, such as mediation, are more likely to experience less stress and anxiety than those who do not. The study found that attorneys who participate in mediation have more control over the outcome of the case, which can lead to a sense of empowerment and reduced stress levels. [American Bar Association Section of Litigation. (2016). Managing the litigation process: Going beyond the pleadings. Chicago, IL: American Bar Association.]
Overall, the research suggests that settling cases rather than going to trial can help to reduce stress and anxiety levels for attorneys, particularly when alternative dispute resolution techniques such as mediation are used.
Conclusion
In summary, referring family law clients to a mediator is an effective way of resolving disputes without having to go through the lengthy court process. By understanding the benefits that such referrals have for both the attorney and the client’s case overall, family law attorneys can make informed decisions about when and how to proceed with mediation. Doing so could lead to improved levels of success for everyone involved. With this knowledge in hand, family law attorneys will be better equipped to provide quality legal services for their clients and ensure successful outcomes for everyone involved.
If you’re interested in using mediation to divorce but your spouse is not willing, there are some things you can do to convince your spouse to mediate. Here are seven tips to help you convince your spouse to do mediation:
1. Discuss the benefits of mediation.
Before you attempt to convince your spouse to mediate, it’s important to be clear on the benefits of mediation. Emphasize how mediation can save both of you time, money, and emotional stress compared to going to court. Explain how the process allows both parties to have more control over the outcome and can lead to a more amicable resolution. A good approach is to communicate your desire to honor what was good about your relationship as you transition out of the marriage. Hiring a mediator is a good way to part with mutual respect rather than with anger and hurt.
2. Address your spouse’s concerns.
If your spouse doesn’t want to participate in mediation, convincing them to mediate requires you to address their concerns. First, listen to their reasons for resistance and acknowledge their feelings. Then, explain how mediation can help them address these concerns and work through any issues that arise during the process.
3. Choose a divorce mediator who aligns with your spouse’s goals.
Because a divorce mediator must be neutral, it’s important to find one who aligns with your spouse’s goals and yours. It’s hard to convince your ex to mediate if she doesn’t feel good about the mediator. Ask potential mediators about their approach and style and then choose one who will work well with your spouse.
4. Involve your spouse in the mediator selection process.
It’s important to involve your spouse in the choice of a mediator. If your spouse feels like they have some control over the process, they may be more willing to participate. Show them a list of potential mediators and ask for input about who would work best for them. At this point, you may not need to covince your spouse to mediate because they will have convinced themselves!
5. Hire a divorce coach to help with how to convince your spouse to mediate.
If your spouse still resists to the idea of mediation, consider hiring a divorce coach to help you enroll them. A coach can help you strategize how to present mediation to your spouse in a way that resonates with them, address any concerns they may have, and help you communicate more effectively with them. By enlisting the help of a coach, you may, as a result, be able to overcome obstacles preventing your spouse from participating in mediation.
6. Find success stories.
Research and share stories of successful mediations with your spouse. Perhaps you have mutual friends who were successful with their own divorce mediation. This can help alleviate fears or doubts they may have about the process and show them that mediation can be a positive experience.
7. Seek therapy or counseling.
If your spouse is still resistant to mediation, it may be helpful to seek therapy or counseling together. A therapist can help you both work through emotional blocks keeping your spouse from participating in mediation. Additionally, a therapist can help you both communicate better, which can ultimately lead to a more successful mediation process. As such, therapists can be terrific allies when convincing your ex to mediate.
Conclusion: Convincing your spouse to mediate may not always be an easy process, but it’s worth the effort.
Convincing your spouse to mediate may not always be an easy process. However, it’s worth the effort if you want to avoid a long and ugly court battle. By using these seven tips, you can help your spouse understand the benefits of mediation, address their concerns, involve them in the selection process, and even hire a divorce coach or seek therapy to enroll them in the process. Remember, mediation can save you time, money, and emotional stress, and it can lead to a more amicable resolution that both parties can feel good about. With the right approach and resources, you can successfully convince your spouse to participate in mediation. This will help you move forward with your divorce in a positive and helpful way.
In California, mediation is a popular alternative to traditional courtroom proceedings for resolving conflicts, including divorce cases. One crucial aspect of the mediation process is confidentiality. Maintaining confidentiality ensures parties can freely express their concerns, explore options, and work towards mutually agreed solutions. In this blog post, we will delve into the details of confidentiality in the mediation process under California law.
Confidentiality in Mediation
Confidentiality is a basic principle for the mediation process in California. California Evidence Code sections 703.5 and 1115–1128 outline the rules and protections regarding confidentiality in mediation. These laws aim to foster an open and honest environment where parties can work things out without fear of their statements being used against them later in court.
Confidential Communications
Pursuant to the California laws on mediation confidentiality, communications made pursuant to mediation are confidential. This means that parties, mediators, and any other parties cannot be forced to share what was said during mediation in court. This rule extends to both the content of the communications and any documents prepared specifically for mediation.
California Evidence Code section 1119 provides in particular:
(a) No evidence of anything said or any admission made for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation is admissible or subject to discovery, and disclosure of the evidence shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
(b) No writing, as defined in Section 250, that is prepared for the purpose of, in the course of, or pursuant to, a mediation or a mediation consultation, is admissible or subject to discovery, and disclosure of the writing shall not be compelled, in any arbitration, administrative adjudication, civil action, or other noncriminal proceeding in which, pursuant to law, testimony can be compelled to be given.
(c) All communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation shall remain confidential.
Exceptions to California Mediation Confidentiality
While mediation is generally confidential, there are a few exceptions where information shared during mediation may be admissible in court. These exceptions include situations involving threats of harm or criminal acts, child abuse, and certain financial crimes. Additionally, if all parties –including the mediator– agree in writing, they can waive the confidentiality. (See California Evidence Code Section 1122.)
Evidence Code Section 1120 specifically spells out the following circumstances when the confidentiality does not apply:
Evidence otherwise admissible in court or subject to discovery is not excluded simply because it was brought up during mediation.
An agreement to mediate is admissible.
An agreement not to take a default or an agreement to extend time is not confidential.
The mere fact a particular mediator is serving on a case is not confidential.
The family law declarations of disclosure required in every divorce case by Family Code sections Sections 2104 and 2105 are admissible, even if the parties prepared them during mediation.
Confidentiality in California mediation processes offers several benefits to the parties involved:
Open Communication: Confidentiality encourages open and honest communication between the parties. It allows them to express their concerns, feelings, and interests without fear of their words being used against them later.
Privacy: Mediation provides a private and confidential setting to discuss sensitive information without becoming public record. This confidentiality protects personal and financial matters from unnecessary exposure.
Preserving Relationships: Confidentiality allows parties to work collaboratively towards resolving their issues. By safeguarding private information, it helps maintain trust and respect, increasing the likelihood of preserving relationships, especially in family law cases.
Creative Problem-Solving: Parties can freely explore various options and potential solutions during mediation, knowing that their ideas and proposals will remain confidential. This freedom fosters creativity and facilitates a more comprehensive resolution of the dispute.
Conclusion
Confidentiality is a crucial aspect of the mediation process under California law. It creates a safe space for open communication, protects privacy, and supports the development of mutually agreed solutions. It’s important for all involved parties to understand the rules and exceptions regarding confidentiality in mediation. By ensuring confidentiality, mediation provides a valuable alternative to traditional litigation, promoting better results for those seeking resolution in California’s legal system.
In the wake of the Covid-19 pandemic, the practice of mediation has undergone a significant transformation.
The necessity to maintain physical distance prompted mediators to adapt and explore alternative means of facilitating dispute resolution. Video conferencing platforms, with Zoom at the forefront, emerged as a crucial tool for mediators worldwide. What started as a temporary solution has now become an integral part of their practice. In this blog post, we will delve into the knowledge and insights gained by mediators as they navigated the world of Zoom mediation, providing a glimpse into how virtual spaces have become the new norm for the mediation profession.
Overcoming Geographical Barriers
One of the most evident advantages of Zoom mediation is the ability to transcend geographical boundaries. Suddenly geography became less relevant. Mediators quickly realized that they could connect with parties and legal representatives located in different cities, states, or even countries, without the need for costly travel arrangements. Mediators with local markets could suddenly go statewide, national or even international immediately. This newfound accessibility expands the mediator’s reach and enhances convenience for all participants. This, in turn, makes mediation a more viable and efficient option.
Flexibility and Convenience
Zoom mediation has brought newfound flexibility and convenience to the mediation process. Parties and their representatives can engage in the mediation from the comfort of their own offices or homes, eliminating the need for extensive travel and potential disruptions to their schedules. This flexibility also allows for greater scheduling options, accommodating parties in different time zones or those with busy calendars, ultimately expediting the resolution of disputes.
Cost Savings
By eliminating travel and accommodation expenses associated with traditional face-to-face mediations, Zoom has proven to be a cost-effective alternative. Mediators have witnessed significant reductions in overhead costs, such as renting physical spaces for mediation conferences. Many mediators completely gave up their physical brick-and-mortar locations in favor of going completely virtual. This financial advantage translates into more affordable mediation services. As a result, doors open for parties who may have otherwise been deterred by the potential financial burden.
Enhanced Preparation and Documentation
Zoom mediation has facilitated improved preparation and documentation processes for mediators. With the availability of screen sharing and document sharing features, parties can easily present and exchange relevant documents in real-time. Mediators can also leverage digital tools to annotate, highlight, and organize documents, ensuring a more streamlined and efficient mediation process.
Maintaining Neutrality and Confidentiality
Mediators hold neutrality and confidentiality as essential pillars of the mediation process. Initially, concerns were raised about the ability to preserve these principles in a virtual setting. However, mediators have adapted by implementing various measures to address these concerns. Using breakout rooms for private discussions, implementing robust security features, and emphasizing confidentiality agreements have become standard practice, ensuring that the virtual space remains as secure and trustworthy as the physical environment.
Technological Proficiency and Backup Plans
The adoption of Zoom mediation required mediators to enhance their technological proficiency. Mediators quickly learned the importance of familiarizing themselves with the features and functionalities of the platform for smooth meeting facilitation. Additionally, they recognized the need for backup plans, such as alternative communication channels or switching to audio-only mode in case of connectivity issues. These preparations have become integral to providing uninterrupted and effective mediation.
Adaptation of Mediation Techniques
The transition to Zoom mediation prompted mediators to adapt and modify their mediation techniques. Effective virtual mediation requires employing active listening skills, establishing clear communication protocols, and managing the dynamics of online interactions. Mediators have also embraced the use of visual aids, virtual whiteboards, and chat features to enhance communication and engagement.
Benefits of Physical Distance in High Conflict Cases
One surprising yet significant discovery for many mediators is the positive impact on physical distance and remoteness in high conflict cases. Zoom mediations create a space for clients without the heightened emotional triggers that can arise in the same physical space. The virtual environment allows participants to feel comfortable and in control, reducing the potential for confrontations and encouraging more productive dialogue.
Non-Verbal Cues through Webcams
Mediators have had to find innovative ways to capture and interpret non-verbal cues that are crucial in understanding participants’ emotions and reactions. Although limited by the virtual medium, mediators have discovered techniques to read body language through webcams. They pay attention to facial expressions, hand movements, vocal expression and changes in posture to gauge participants’ responses. Additionally, they encourage participants to use non-verbal cues, such as nodding or using hand gestures, to enhance communication and understanding.
Conclusion
The widespread adoption and implementation of Zoom mediation during the Covid-19 pandemic has revolutionized the field of mediation. Mediators have embraced the benefits of virtual platforms, including overcoming geographical barriers, increasing convenience and flexibility, and reducing costs. They have honed their technological proficiency, adapted mediation techniques, and found ways to navigate challenges such as preserving neutrality and capturing non-verbal cues. As the pandemic recedes, Zoom and other video conferencing platforms are likely to remain a valuable tool in the mediator’s toolkit, offering an efficient and effective means of resolving disputes in a rapidly changing world.
In recent years, the term “gray divorce” has gained prominence to describe couples who decide to part ways after the age of 50. As the U.S. population continues to age, this trend has become increasingly prevalent. While some may find freedom and relief in this decision, it’s a path fraught with unique challenges, particularly for older couples. In this comprehensive guide, we will delve deep into the considerations that need to be at the forefront of your mind if you’re contemplating a gray divorce.
1. Financial Impact of the Grad Divorce:
When it comes to gray divorce, financial implications are often front and center. Many older couples have spent decades accumulating substantial wealth together, which can complicate the process of dividing assets. It’s imperative to have a clear understanding of your financial landscape, which includes all assets, investments, retirement funds, and debts.
Gray divorce can potentially lead to economic hardship, as your income and assets may significantly diminish post-divorce. It’s wise to consult with financial advisors who specialize in divorce-related financial planning. They can help you develop a comprehensive financial plan that ensures a more secure future.
2. Retirement Plans:
Retirement plans are a pivotal aspect of gray divorces. Unlike younger couples, older folks have less time to recover financially from a divorce, making meticulous retirement planning essential. Each spouse should carefully assess the retirement assets available to them after divorce and how this will affect their future. This might entail adjusting retirement plans or even postponing retirement to secure financial stability.
Additionally, consider consulting with a Certified Financial Planner (CFP) who specializes in retirement planning who also has a special designation called, Certified Divorce Financial Analyst (CDFA). A CFP who is also a CDFA can help you make informed decisions about how to manage your retirement accounts during and after a gray divorce.
Consider consulting with a Certified Financial Planner (CFP) who specializes in retirement planning who also has a special designation called, Certified Divorce Financial Analyst (CDFA).
3. Health Insurance and Medical Costs:
Healthcare is a more significant concern the older we get, and a gray divorce can complicate matters. If one spouse has been dependent on the other’s health insurance, they’ll need to secure their own coverage post-divorce. This often involves researching and purchasing new health insurance policies, which can be complex due to the myriad of options available.
Moreover, as we age, medical costs can increase, and managing these expenses independently can be challenging. It’s crucial to factor these potential costs into your post-divorce budget and explore long-term care insurance options to mitigate future financial burdens.
It’s essential to address the emotional implications of your gray divorce and seek the necessary support.
4. Emotional Well-being in the Gray Divorce:
Divorce is emotionally challenging at any age, but for older spouses, the impact can be particularly profound. The prospect of living alone after decades of marriage can be daunting and lead to feelings of loneliness and depression. It’s essential to address the emotional implications of your gray divorce and seek the necessary support.
Consider engaging with a therapist or counselor who specializes in divorce-related emotional support. They can help you navigate the emotional journey, develop coping strategies, and rebuild your sense of self and purpose.
5. Housing Situation:
Deciding where to live post-divorce is another significant consideration. You may find yourself needing to sell your family home and downsize, which can be an emotional and logistical process. Alternatively, if you choose to keep your home, you’ll need to consider the costs associated with maintaining it on a single income.
A real estate agent specializing in older adult housing can assist you in finding a suitable new residence or evaluating the financial implications of keeping your current home. Additionally, consult with a financial advisor to create a housing budget that aligns with your post-divorce financial situation.
6. Gray Divorce Legal Considerations:
The legal aspects of a gray divorce can be complex and require careful navigation. This may involve updating your will, deciding on power of attorney, or addressing issues related to inheritance and estate planning. Seeking legal counsel is advisable to guide you through this multifaceted process.
When choosing an attorney, be sure to add an expert in estate planning to your team. They can help ensure that your legal affairs are in order and that your wishes regarding inheritance, property division, and medical decisions are properly documented.
7. Social Adjustments with the Gray Divorce:
Older couples contemplating a gray divorce should consider the social adjustments that come with it. Friends and family may react differently to your decision, and adapting to single life can take time. Embrace this transition as an opportunity to explore new interests and activities that align with your newfound independence.
Consider joining social groups, clubs, or organizations that cater to your interests and hobbies. Building a supportive network of friends and acquaintances can provide emotional stability during this period of change.
8. Alternative Dispute Resolution Options:
Finally, in the realm of gray divorce, alternative dispute resolution (ADR) options like collaborative practice and mediation can be particularly beneficial due to the flexibility they afford, especially when compared to the traditional court-based approach.
Collaborative Gray Divorce:
This approach involves you and your spouse working with collaborative divorce professionals, including lawyers, financial experts, and mental health professionals. The aim is to reach a mutually agreeable settlement without going to court. Collaborative practice encourages open communication and problem-solving, which can be especially valuable for older couples seeking an amicable divorce.
Mediation and the Gray Divorce:
Mediation is another no-court option where a neutral mediator helps facilitate discussions between you and your spouse. The mediator helps you reach decisions on issues such as property division, alimony, and child custody. Mediation can be less adversarial and more cost-effective than litigation, making it a suitable choice for gray divorces.
Collaborative Divorce is a great way to address the complicated issues of your gray divorce with maximum support from multiple professional points of view.
Mediation is a flexible and cost-effective no-court option allowing for flexibility and creative solutions in your amicable gray divorce.
Both collaborative practice and mediation prioritize finding common ground and preserving relationships, which can be crucial for older couples who have shared many years together. These methods also tend to be less time-consuming and costly than traditional litigation, allowing you to retain more control over the divorce process and its outcomes.
In conclusion, while a gray divorce can offer a fresh start for some, it is not a decision to be taken lightly. Older couples considering this path need to think about these considerations comprehensively. Seek professional advice from financial advisors, lawyers, therapists, and consider alternative dispute resolution options to ensure a secure, emotionally healthy transition into this new stage of life.
By addressing these considerations proactively and exploring ADR options, you can navigate the complexities of gray divorce with greater confidence and clarity. Remember that you’re not alone on this journey, and there is support available to help you make the transition as smooth as possible.
Divorced parents spending holidays together for the kids’ sake raises a lot of tough questions. The holiday season, often hailed as the most wonderful time of the year, can become a source of stress for divorced parents. It’s a period steeped in family traditions and gatherings, which can serve as poignant reminders for those who have undergone a divorce. As parents, ensuring the best holiday experience for your children becomes a priority, but this can pose a challenge when you’re no longer together.
Approaching the approaching holiday season, divorced parents often grapple with the decision of whether to spend holidays together for the sake of their children. While this dilemma presents various advantages and disadvantages, the ultimate consideration revolves around the well-being of the family, particularly the children. In this post, we’ll explore these aspects and offer valuable tips for divorced parents navigating the holiday season.
Pros of Spending Holidays Together:
Creating Stability: Spending the holidays together can provide a sense of stability and continuity for children. Amidst the upheaval of divorce, maintaining routines becomes crucial for children’s well-being. Coming together for holidays can offer a familiar environment and reassure children that despite the separation, they’re still part of a family.
Shared Positive Memories: Celebrating holidays together fosters shared memories. Accordingly, these moments become cherished by children, serving as a lasting connection to happy times spent with both parents. Such shared experiences contribute positively to a child’s emotional well-being.
Stress Alleviation for Children: Uniting for celebrations can lessen stress for children navigating post-divorce life. Dividing time between two households during the holidays can be emotionally burdensome. Celebrating together can provide a more relaxed and enjoyable experience for the kids.
Cons of Spending Holidays Together:
Potential Conflict: A major concern revolves around the potential for conflict between ex-spouses. Lingering tensions and unresolved issues from the divorce can surface during holiday gatherings, negatively impacting the children’s experience.
Logistical Challenges: Practical challenges like distance or financial constraints may hinder spending holidays together. Certainly, geographical separation or differing financial capacities can make joint celebrations unfeasible.
Introducing New Partners: The presence of new partners or spouses can complicate joint celebrations, leading to discomfort or conflict. This situation can make both ex-spouses and new partners feel uneasy, affecting the holiday atmosphere and potentially distressing the children.
Emotional Considerations
Being around an ex-spouse during the emotionally charged holiday season can be taxing. Acknowledging and addressing unresolved emotions is vital for parental well-being, ensuring a more positive environment for everyone involved. Be very mindful of your own state of mind. If you can pull the celebration off without exposing the kids to conflict, then great. If you or your ex can’t spend the holiday together without it turning into a big fight, then think twice.
Tips for Navigating the Holiday Season:
Prioritize Children: Keep the focus on the kid’s happiness and well-being during holiday planning.
Open Communication: Discuss expectations, boundaries, and plans openly with your ex-spouse to minimize conflicts.
Flexibility: Be adaptable to changes and open to compromises to ensure a smoother experience for the children.
Self-Care: Remember to take care of your own mental health amidst the busy and potentially stressful holiday period.
Conclusion
Deciding whether to spend holidays together after divorce is complex, with no universal right answer. The decision must revolve around what’s best for your family and children. If choosing to unite for holidays, focus on creating positive memories and open communication. Be flexible, accommodating, and prioritize self-care. By navigating the holiday season thoughtfully, divorced parents can foster a meaningful and joyful experience for everyone involved.
Alas! A New Year has come and gone again. For most of my current clients, 2023 was a rough year. It brought them the end of their marriages. Although the year may have been filled with conflict with a former spouse over money, kids, etc., you are ready to move on. Perhaps there were tears shed. Maybe dreams were shattered. Sound depressing? It can be. But 2023 is over, so there is an opportunity to build a new experience for the New Year post divorce.
Here are my suggestions for some words to consider when making your resolutions for the New Year post divorce. This is in no way a comprehensive list. It’s just some of my own thoughts. Perhaps you have your own resolution ideas that you would like to share. Here are mine:
Peace in the New Year After Divorce.
You got a divorce for a reason, right? I’m sure things weren’t all butterflies and rainbows. But now you are divorced. So take the opportunity to stop the fighting and discontinue the war with your ex. If there is a legitimate legal concern that needs addressing, use mediation or Collaborative Practice instead of adversarial litigation to resolve those differences. It’s a great opportunity to move on and find peace in the New Year post divorce. A meditation or mindfulness practice can go a long way towards achieving some peace.
Co-Parenting in the New Year After Divorce.
Before your divorce, parenting may have been easier. Post-divorce, you still have to interact with the person you divorced to raise your kids. Your kids need you to get along. There is a lot of evidence that continued parental conflict after the divorce is very harmful to children. Resolve now to be the best co-parent you can be in the New Year post divorce. Look for ways to be cooperative (even when the other parent doesn’t). If you haven’t always been a leader in the child rearing arena, now is the time to step up to the plate and make a helpful contribution. Be the grown up here and your kids will thank you.
Self-reliance in the New Year After Divorce.
Now that you are on your own, you don’t have the other person there to rely on. This is a great opportunity to stand on your own two feet with your head held high. Be your own person. Be strong. Be self-assured. Be independent.
If you are receiving alimony, look for ways to be self-supporting so that you don’t need support anymore. Meet with a vocational counselor to make new career goals. Enroll in school or get trained, or retrained, in a field that you can be passionate about.
Plan for your future financial well-being. So, meet with a financial advisor to make sure you are using your money wisely. Come up with a five year or ten-year plan. Then, check in with an estate planning attorney to make sure you have updated your will and estate plan, as you’ll want to make sure that anything you name in this document goes to the trustee of your choice.
Health in the New Year After Divorce.
Perhaps during 2023 you let the stress of the divorce affect your health. Maybe you didn’t eat well. Perhaps you stopped going to the gym. Or maybe you weren’t sleeping well. Perhaps you were depressed or angry causing your emotional well-being to suffer. Resolve now to restore your health in the New Year post divorce.
Take the time to eat well and exercise. Get good sleep. What’s more, get your annual physical from your doctor and make a plan for your physical health. Take care of your body and it will take care of you.
But don’t forget your emotional health either. Divorce can be such a toxic and painful experience. If you are struggling, meet with a therapist and work through the changes in your life resulting from your divorce. Before you date, make sure that you work though any lingering issues you may have so that you can be your best self before you involve another person in your life. I have noticed a clear correlation in my clients who sought post-divorce therapy and their level of happiness years later.
Forgiveness in the New Year After Divorce.
I know that “forgiveness” is a loaded word. It’s easier said then done. You may feel hurt or anger toward your former spouse. As mentioned before, you’ve lived through the whole process of finding a family lawyer, dealing with the stress of separation, and still taking care of the kids. You chose to divorce for a reason. And yes, consequently, you are divorced now. It’s time to let it go. The past is in the past.
Now keep in mind, I am not suggesting you allow more abuse if that is what happened before. Keep in place whatever safety measure you have to prevent others from hurting you again. I am just suggesting it is time to move on from there. Anger and hurt can be very damaging emotions. Do what you can this year to forgive so that you can leave those terrible feelings behind you. If you find you can’t do it alone (and most can’t) talk to someone. Turn to a spiritual advisor or a mentor to help you leave the past in the past.
Don’t forget to forgive yourself. Guilt has it’s place, but it can eat you up if you can’t get past it. Perhaps you have serious regrets about how your marriage ended. Rather than let the guilt consume you, find a way to learn from the experience, forgive everyone involved and move on.
You have read my list of New Year’s Resolution words for the newly divorced. What are some of your words? I would love to read them!
As a certified family law specialist (CLS-F)[i], I have been involved in divorce mediation and alternate dispute resolution (ADR) for more than 15 years. I regularly serve as a pro tem settlement judge on the Mandatory Settlement Conference (MSC) Panel with the San Diego County Superior Court. While I enjoy helping folks through their MSCs, the help is simply too little too late for many people. Often preparation for the MSC is nearly as stressful and costly as preparing for the trial. In addition, lawyers need to certify that discovery is complete and prepare elaborate briefs. Waiting until the very end of a case to attempt mediation does the parties and the professionals a great disservice. I see this in the pained and stressed-out expressions on parties and counsel at the MSCs I facilitate.
There are many options at the beginning of the case to settle issues, manage discovery concerns and resolve unnecessary conflict. Even (and especially) high conflict cases can benefit from earlier intervention with a mediator to short circuit the conflict. Attorneys benefit from early mediation because it helps them settle the cases that can settle. That frees them up to focus on trials for cases that won’t settle.
Here are some ideas for how you can engage the ADR services of a mediator early in your family law case:
Meet and Confer on Steroids.
Every family law attorney is aware of the requirement for the “meet and confer” conference. Too often it’s simply given lip service by a short phone call to opposing counsel without discussing the issues. Because lawyers sometimes give less attention to what needs to happen to settle, the case stalls. Why not have a facilitated meet and confer settlement conference to identify the issues and formulate a plan for a swift conclusion?
Discovery Management.
Often the most expensive part of a case is the discovery, which involves elaborate and arcane procedures to gather as much evidence as possible. Sometimes this is whether the case needs the information or not. The adversarial process spurs less and not more cooperation in discovery. This can lead to months or even years of discovery wars. Why not use a mediator to help “referee” the discovery? Most discovery can be provided informally with much less cost. A mediator can help facilitate the discovery process to specifically target discovery needs and conclude the case with much less rancor and headache for the lawyers and cost to the parties.
Managing the High Conflict Case.
There is a common misconception that people cannot mediate high conflict cases. That’s simply not true. Most high conflict behavior in divorce cases is based on fear and hurt. So, engaging a good mediator early in the process reduces conflict by managing the fight-or-flight response. Court tends to exacerbate and actually encourage high conflict pathologies. Rather than encouraging discord with a fight at court, consider short-circuiting conflict with a mediator experienced in high conflict. Consequently, if parties learn early how to interact productively, it makes the rest of the case go more smoothly.
Use Early Mediation to Resolve Interim Issues.
The terribly backlogged Family Courts sometimes take months to hear even the most routine (and sometimes pressing) interim motions. I can usually help as a mediator to resolve interim questions like support and custody in a fraction of the time and cost compared to filing a Request for Order. Because a mediated settlement conference efficiently resolves interim issues, the parties can relax a little more and focus on concluding the case rather than reacting to interim problems.
Consider a Court-Ordered Family Resolution Plan and Use of ADR Pursuant to Family Code Section 2451.
One little-known provision of the Family Code involves the use of Alternate Dispute Resolution (ADR) as part of a court-ordered family centered case resolution plan as described in Family Code section 2451. California Rule of Court 5.83 describes how the plan can be implemented. Parties can appoint a case manager as part of the plan and can also apply Code of Civil Procedure section 639 to appoint the case manager as a discovery referee. Further, Family Code section 2451(a)(3) gives protection to attorneys who follow any discovery plans adopted as part of a court-ordered family resolution plan as follows:
“Limitations on discovery, including temporary suspension pending exploration of settlement. There is a rebuttable presumption that an attorney who carries out discovery as provided in a family centered case resolution plan has fulfilled his or her duty of care to the client as to the existence of community property.”
I have used this procedure to great effect. It can do a lot to reduce costs and keep the case moving quickly towards settlement.
Let Us Move Your Case Past Stuck.
Because there are many ADR options beyond an end-of-case settlement conference where a mediator can make a huge difference, the key is to start early. At Weber Dispute Resolution, we have the training, skills, and experience to get your family law case past stuck. That’s because our approach serves to support existing relationships with legal counsel and will not waste family wealth by exacerbating family conflict. Experience first-hand the difference a dolphin lawyer can make.
[i] Certified Specialist – Family Law, The State Bar of California Board of Legal Specialization.
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