NEGOTIATION, MEDIATION, ARBITRATION AND OTHER FORMS OF ALTERNATIVE DISPUTE RESOLUTION FOR DIVORCE

Negotiation, mediation, arbitration, settlement conference are terms sometimes used interchangeably by the lay public. They actually are quite distinguished from each other and have a different interpretation. Here is a guide to these terms as generally accepted in the legal community.

In most jurisdictions, including Washington State, before a couple can have a trial before a judge in a divorce matter they are required to participate in Alternative Dispute Resolution. (ADR) There are many forms of ADR and the approach can be quite different. There is no right and wrong, rather it is more a matter of what is appropriate given the issues to be resolved, the personality of the parties, and even the preferences of the attorneys. I view all of these forms on a continuum of formality and aggressiveness. Here are some general explanation of terms:

Negotiation

Negotiation can be very informal as a husband and wife discussing issues at the kitchen table to a formal meeting with attorneys. There is no intermediary and the parties are working to find an acceptable resolution. Negotiation requires some mutual respect and trustworthiness and both parties should be negotiating in good faith. Obviously, negotiation is the most cost effective alternative.

Mediation

Neutral Mediator

There are several forms of mediation. Often in divorce, parties will seek the assistance of a mediator to help them resolve outstanding issues. A mediator is neutral and will not offer an opinion or legal advice. The mediator is trained in drawing parties out to find acceptable solutions. Once the parties motivating factors are discovered it is often possible to find a resolution that will meet both parties needs. For example, one party may be more interested in retirement assets and is willing to give in on sharing home equity. While the mediator is neutral, she may help tip the balance of power for the person in the weaker bargaining position or the less sophisticated party.

Directed Mediation

Sometimes as a case gets more contentious, the parties will work with a more directed mediator. I distinguish this type of mediation by calling it a settlement conference. The mediator is typically a retired judge of a senior family law attorney with years of experience. The mediator is more apt to offer opinion and attempt to persuade a party toward a particular resolution. The mediator's goal is to get the parties to an agreement and avoid further litigation which can be contentious and expensive.

The parties' attorneys will most likely write a brief or "settlement letter" and offer evidence to support her client's position. The mediator is not a judge but since she will be offering an opinion as to the best settlement posture, it is important that the mediator be well informed as to each of the parties' positions.

Settlement conferences are more costly than simple interest based mediation because there is often extensive preparation but is certainly less costly than a trial before a judge.

Arbitration

If the parties cannot reach a settlement through negotiation or mediation, they may opt for arbitration. In this format, the parties and or their attorneys present their best argument and evidence and the arbitrator makes a decision. Often the parties have agreed to make the decision binding, meaning the arbitrator's ruling will determine the final outcome and the parties agree to abide by the decision. There generally is no appeal from a binding arbitration ruling.

Sometimes if the parties were unable to come to terms through mediation, they will let the mediator become an arbitrator and make a ruling. There is some controversy behind this and the pros and cons for the particular case must be considered.

Binding arbitration results in a much faster decision than one would get at trial, the evidence is presented in a more informal manner and the parties do not have to wait several months for a trial date. Arbitration will generally cost less than a full court trial.

This is a very brief overview of the various forms of Alternative Dispute Resolution and is designed to merely distinguish some of the terms often used. The best approach should be determined in a discussion with legal counsel. I generally start with the most informal, less costly negotiation possible and proceed up the continuum all in the interest of giving my client the most control over the outcome.

I'm happy to offer a brief consultation for your consideration. I also offer a legal coaching program to help parties wishing to represent themselves.

WASHINGTON STATE DIVORCE: BEGINNING THE CASE AND FILING A PETITION

The most frequent comment I hear from clients is “I’ve never done this before”. This is true and probably they will only do it once. Some people do extensive research and have a lot of knowledge but don’t know how to put it together and some of my clients are complete strangers to the process. My job is to be a guide to the novice and to those who have extensive knowledge. Here is a basic run through of beginning the legal process in Washington State. Keep in mind this is general information only and your case may be different. Also each county is slightly different. Most of this information is true of every county but where there is a significant difference I will point it out.

The process begins with the filing of a Petition of Dissolution of Marriage, (or domestic partnership). This gets you a case number and starts the process. It is not necessary to have all the details of the divorce worked out before filing the petition. Typically the Petition will have a Petitioner and a Respondent. If the parties are in agreement about the divorce, they may file a Joinder, meaning the other party joins in the petition. In a cooperative divorce, my colleagues and I have developed a Co-Petition as less adversarial. This is a bit of an end run we so far have been able to accomplish as attorneys. Here I would have to say “Don’t try this at home” as it is not yet recognizable by the courts.

If both parties have signed the petition there is no need for a Summons or Service of Process. Otherwise one must file a Summons and have “proper service”. Service can be accomplished by the party acknowledging receipt or being served by a process server. Sometimes the other party’s attorney will “accept service”. You cannot serve the other party yourself. Two important things to note here: One, there really is no reason to avoid service. It won’t stop the divorce ultimately and you could be charged with the costs of a process server and even extra attorney fees. Second thing to note, the ninety day waiting period begins when the other person has been served or acknowledges receipt.

The on line forms seem onerous and I see people spend weeks, even months gathering information. This is not necessary. The Petition can be very generic. (There is an exception here that is too complex for this article and falls under the cautions below.) Most issues are “to be determined”. Even the date of separation is not necessary. It is acceptable to say “the parties are not separated” or even “to be determined later”. The date of separation has some important legal significance and if you don’t know what they are, you don’t want to lock yourself into the wrong date.

Now that a Petition has been filed, it is public record, available for everyone to see. This includes potential mortgage lenders. This is why sometimes when working with couples, I recommend waiting to file a petition if there is a possibility of obtaining a new mortgage or refinancing an existing mortgage to remove one of the party’s names.

There is a minimum 90 day waiting period in Washington State before a divorce can be final. However nothing happens on the 91^st day. It is up to you to prepare and present final papers to the court. I can’t begin to tell you the problems that have been caused by people that thought their divorce would be final in 90 days and did nothing else. You must prepare a Decree of Dissolution and have it signed by a judge.

Once the Petition has been filed, the couple can start working out the details of their divorce. This includes Property Settlement, Child Support, Parenting Plan and perhaps, Spousal Maintenance. While some couples move very swiftly, most people take longer than 90 days to work out these details.

This is the procedure for beginning the Divorce process in Washington State. I will address how to complete the divorce in a future article.

Special considerations that really require the help of an attorney: Spouse lives in another state, don’t know where the spouse lives or the children and spouse live in another state.

If you are trying to file your own divorce, I am available for "legal coaching" and can help get you started. Of course, I also can do it all for you for a flat fee. Let's talk.

DIVORCE STORIES -- WHY YOU SHOULD LISTEN TO YOUR LAWYER

The Story About the Contractor, or The Man Who Came to Dinner and Stayed to Remodel the House

The lessons learned from this story: Listen to your lawyer about the value of your case; just because you married the owner, it does not become community property and don’t remodel a house that isn't yours.

Dave loved to remodel houses. He loved high quality materials and foraged construction sites and surplus stores for sinks, unusual woods, windows and other tools of his trade. He had always loved remodeling houses. He remodeled a rather ordinary three bedroom rambler in a run down neighborhood turning it into a House Beautiful in the midst of Hot Rod Haven. They told him he could not sell it for an amount that would cover his costs even though he had done all the work himself and got most materials at bargain prices. He has, as they say, overbuilt for the neighborhood. Dave never got to find out what his house was worth as he lost that house in his first divorce.

After the divorce Dave continued to work odd jobs, Mostly what we call under the table. Cash or checks cashed at the issuing bank. Money that IRS and ex wives wouldn’t find. Dave’s reputation for quality work was impeccable although things didn’t get done on time and he usually forgot to keep financial records. Nonetheless, Dave had plenty of work.

Nadine was recently divorced and wanted to remodel her kitchen. She met Dave through friends. She paid him $20,000 and he did a craftsman like job with which she was pleased. He started hanging around the house more and more and soon they became romantically involved. Soon Dave moved in with Nadine. Dave started some more projects on the house. A sun room would be nice. One with large bay windows of the highest quality and the most energy efficient. The back deck was demolished in preparation for a project some day. Dave asked Nadine if his adult son could move in with them. Dave turned the garage into a separate bedroom with private bath. He found modern fixtures and even some marble countertops. He had enough marble left to refinish the laundry room. The only house in the neighborhood with marble counters in the laundry room. New wainscoting in the downstairs family room and a new fireplace mantle would be nice. Somewhere along the way, Dave and Nadine got married.

Dave and Nadine fell out of love. Or rather Nadine fell out of love with Dave and asked him to move out. Dave couch surfed for a while and his son went back to live with his mother. Dave had a great personality and always could find friends who could provide bed and board in return for some nice carpentry.

Come now the divorce lawyers. Nadine was in no mood for a cooperative divorce. In her mind, there was nothing to cooperate about. It was a short term marriage, they did not have children and, in her opinion, there was no property to divide. They had never comingled their finances or obtained joint bank accounts or credit cards. Nothing to it. Or so she thought.

Dave demanded his “community property” share of the house. Dave had the mistaken notion that because they were married in a community property state the house became community and he wanted Nadine to buy out his share of the equity, at that time about $100,000. Dave was on his third lawyer and he finally recognized that the house remained Nadine’s separate property. However, he was determined to get reimbursed for his expense and effort at remodeling the house.

As I said, Dave did have a disarming charm and I agreed to represent him in negotiating a reasonable settlement. It would be “unjust enrichment” for Nadine to reap the benefit of Dave’s remodeling work without any compensation. Dave had already spent more than fifteen thousand dollars on his previous attorneys and I thought I could resolve the case easily in a few weeks.

Dave had no records of his out of pocket expenditures and, of course, no records or even reasonable calculations as to the number of hours he spent. In his mind, however, he felt entitled to $125,000 reimbursement. Nadine believed he was entitled to nothing and even had some notion that Dave owed her rent for the time he and his son lived in her house.

I often cite the statistic that 95% cases do not go to trial. This was the exception. Despite my best efforts, the case did go to trial. Both Nadine and Dave were determined to spend whatever they needed to in order to be right. Mediation and two fairly amicable lawyers could not convince them otherwise. Each just knew the judge would decide they were right.

Any guess as to the outcome of the trial?

Dave believed he should be compensated for the actual cost for time and materials for the remodel. A legal principle law provides that if Nadine paid nothing she would be unjustly enriched. The law also provides that Dave could only be compensated for the amount he had increased the value of the house.

Nadine’s real estate appraiser testified that Dave had actually decreased the value of the house because the bedroom replaced the garage and a house without a garage was worth less than one with. Also the unfinished deck diminished the value. Nadine’s appraiser had never testified as an expert witness and he contradicted himself several times. Our appraiser had spent hours and countless cases testifying as an expert. His pictures, analysis and testimony convinced the judge that Dave’s work, which was of unquestionable quality made the house worth $60,000 more than if had not been remodeled. Even without a garage. Sound good doesn’t it? Well, remember, Nadine had paid Dave for the kitchen remodel before they were married. That took the value Dave had increased the value of the home by only $50,000. Dave wasn’t happy with that but was willing to settle for $50,000.

But wait, there’s more. Dave performed the work while they were married and his time, skill and effort as well as the money spent on materials was all community property.

Result: Dave was entitled to $25,000 reimbursement from Nadine.

Moral of the story? Listen to your lawyer about the value of you case, Mediation usually costs less and gets better results, and don’t remodel a house that isn't yours.

Grandparents, Do You Know Your Rights?

Being a grandparent is a great blessing among my peers. We all celebrate the birth of new grandchildren and happily share pictures of what we know to be the cutest, brightest and sweetest children in the world. This is universal. When I traveled to China I carried a picture of my grandson. Wherever I went I could attract a friendly crowd by showing his picture. Somehow through pointing and sign language we could establish the grandmother bond. I bet we could make greater strides toward world peace and understanding if our diplomats and heads of state shared grandchildren pictures.

It saddens me greatly when I am asked by a grandparent to help him/her establish visitation with grandchildren when the grandparents are estranged from the child’s parents. It saddens me first of all that the relationship is such that the grandparents feel the need to enforce rights and it saddens me because there is little by way of law to help.

In 2000 the United States Supreme Court ruled against grandparents who wanted visitation with their two young granddaughters. The girls’ father had committed suicide and mother refused to let the children see their dad’s parents. In this Washington State case, the high court determined that unless the parent was impaired in some way, the parent was the ultimate decision maker as to the best interests of the child. Jennifer and Gary Troxel had no inherent rights of visitation.

Since then a few state courts have modified the Washington State ruling but primarily in the case of the death of one of the parents. This 2006 article in USA today summarizes some more recent cases. http://www.usatoday.com/news/washington/judicial/2006-09-12-grandparents-favored_x.htm The issue apparently has not been addressed circumstances where the parents divorced.

When parents divorce, the grandparents’ rights flow through their son or daughter. When mom or dad has parental time with the children, he/she can include the grandparents. The other parent cannot object to the children seeing their grandparents unless it can be proven that being around the grandparents would be harmful to the children. The grandparents have no independent right to visitation. To better understand this issue, it is important to view it from the parents’ perspective. Parents contend that they should have the ultimate say over who gets to see their children.

Richard Victor, a Michigan lawyer who founded the nationwide Grandparents Rights Organization in 1984, says he has not seen a surge of grandparents trying to go to court. Such lawsuits can take years and tens of thousands of dollars in fees to resolve, he says. "The law in still in flux. It's better to get people to talk to each other, rather than sue each other."

The best advice I can give to grandparents is to get along with the grandchildren’s parents.

Don’t Want to Hire a Lawyer for your Divorce? How About a “Legal Coach”?

Consulting with a lawyer can be a huge step for some people when they are contemplating divorce. Seeing a lawyer makes it far too real. Seeing a need, I developed a program for those who don't want to hire a lawyer. At least not yet. Do you identify with any of the following?

Harriet is unhappy in her marriage but has a lot of fear about what the future would look like for her. Her therapist suggested she get some legal advice.

Larry has been researching on line for months now regarding divorce. He has found forms that are confusing, legal advice that doesn’t seem to apply to his case, he even found a child support calculator but it doesn’t seem to fit his case. Larry does not want to hire a lawyer

Martha and her husband have been working with a divorce mediator but she feels she has not been given enough legal advice and wants to know what would be legitimate requests to make without having to involve another lawyer.

Tom is a whiz and investments and finances but neither his CPA or investment advisor can give him satisfactory answers to tax implications of divorce. His financial advisor told him to get legal advice.

Bob is president of his company and is worried about the effect of a divorce on his business. Before he makes a decision, he needs to know what he can expect and how can he determine how his business will be evaluated.

Sally and her husband have fashioned a settlement agreement but her friends and relatives are warning her that she may be missing something. Sally doesn’t want to involve a lawyer but her friends are insisting she talk to one.

Don really wants to move out of the house for a “trial separation” but fears he will be accused of abandonment and will lose his rights to property or parenting. His coworkers have advised him to talk to a lawyer first.

Mary needs some legal advice but feels hiring a divorce lawyer is just too big a step. Besides all the ones she has talked to seem to be trying to sell her their services. She wants objective advice.

In my ever evolving effort to find ways to help people going through or contemplating divorce I experiment with different programs I can offer. A solution for Harriet, Larry and the others just might be a package I call “Legal Coaching”.

For a flat fee I offer a legal coaching session dedicated to the individuals needs. I can explain the legal process, show a client what the forms look like and give them a timeline. I can run child support calculations, discuss support and parenting issues. I give an unbiased assessment of their situation. The fee is about equivalent to my hourly rate but I don’t turn on a timer. Most sessions run from one to one and a half hours, sometimes longer. We take as long as we need for that session. During the session I might even refer the person to a different lawyer that I think would be more appropriate for their situation.

In an earlier day I would be known for my golden rolodex. Now it’s an electronic database. I have given referrals for parenting specialists, divorce financial planners, real estate agents and mortgage brokers. I have pointed people in the right direction for career advice, personal growth and even professional organizers. My network even includes a collision repair specialist but that’s a different story.

The benefit to legal coaching is that the advice is completely unbiased. I can assess a client’s case honestly without concern whether that person may not hire me if I tell them what they don’t want to hear. The client’s have paid for the time and don’t have to worry that they are wasting my time because they do not plan to hire me. A client can come back for more coaching at anytime – completely on his/her timeline. The coaching fee can also be applied to payment for full representation. Kind of rent before you buy.

A legal coaching session is different than the introductory session a client might want before making a hiring decision. That meeting is more a matter of seeing if our personalities fit and, given the facts of the case, if I am the right lawyer for them and they are the right client for me. Legal coaching is much more in depth.

So far I have had several people take advantage of the legal coaching model and I see it evolving further as a very viable product for some people. I will continue to develop more products and most likely add some hand outs. My clients will be my best teachers as I develop this concept.

COMMON MYTHS ABOUT DIVORCE, CHILD CUSTODY AND COMMUNITY PROPERTY IN WASHINGTON STATE

Here are some random Friday musings about some of the misconceptions I often hear. No particular order or importance just as I thought about them. As always, this is informational only and not intended as legal advice for your particular situation. Always confer with an attorney before taking any action regarding these issues.

My Spouse won’t give me a divorce

You don’t need your spouse’s permission or agreement. Washington is a “no fault state” and the only grounds for divorce (technically called “dissolution of marriage”) are “The marriage is irrevocably broken”. If one person believes this is true, then the marriage will be dissolved. The person seeking to dissolve the marriage first files a Petition for Dissolution of Marriage. If the spouse refuses to sign anything and there is proper service meeting specific legal specifications the divorce can be completed by default. Even if you don’t know where your spouse is, you can still accomplish legal service with a court order for mail or publication in a legal newspaper.

While the divorce can be accomplished without the other person’s cooperation, you still may have issues regarding children or division of property. If you are very clear on you petition as to what you are requesting and your spouse does not respond, then your request will be granted.

A divorce by default is probably only appropriate if there are no children, real estate and very little property.

My spouse and I agreed to 50-50 custody so no one will be paying child support

I hear this constantly and it is simply not true. Custody is now called a “parenting plan” and the parenting plan determines where the children are on a day to day basis. Child support is a separate issue and is based upon the Washington State Support Schedule. While there may be some adjustment for residential time, child support is mostly based on the parents respective income.

Washington is a community property state so if we get married everything will be community property

Only property acquired during the marriage is community. This means that if you owned a house or business before you married it does not automatically become community property when you get married. What gets tricky is that your income during the marriage is community and if you put that money into the business or property, the community has an interest. Gets tricky here doesn’t it? Gift or inheritance also is separate. A common problem I see is when parents give a gift to the couple. Was it a gift only to their offspring or was it to the couple? Depends who you ask. At the time of the wedding, everyone may think it is to the couple but if the marriage is dissolved, they parents may claim the gift was to their son or daughter only.

Community property is one of the most difficult subjects in law school and even professionals differ over this issue. Don’t be surprised if you and your spouse have a different opinion. And don’t be surprised when your lawyer answers your question with “that depends”.

Community property means everything is divided 50-50

My clients are shocked when they learn this is not true in Washington. The operating word in Washington State is “equitable”. Is it safe to say that divorcing couples rarely agree on what is equitable? Some folks actually believe property should be divided by who contributed the most toward purchase. They couldn’t be more wrong. Equitable is based upon the relative position of the parties, the length of the marriage, the earning capacity of each and many other factors. In a long term traditional marriage it is not unusual for the stay at home spouse to receive 55 to 60 percent of the community assets and sometimes more.

Every case is different and, as they say “these results are not typical”. By the way, don’t think this just applies to stay-at-home moms. I have had several cases where the higher earning spouse was the wife. Once again, the lawyer answer: “It depends”. If you really want to know, here is the specific law:

“the Court shall, without regard to marital misconduct, make such disposition of the property and liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors, including but not limited to:
1. The nature and extent of the community property
2. The nature and extent of the separate property
3. The duration of the marriage, and
4. The economic circumstances of each spouse at the time the division of the property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time." (Revised Code Of Washington 26.09.080)

Often "just and equitable" will mean a greater than 50% to a spouse who has forgone a career and does not have the ability to build retirement assets. The other surprise to some people is that separate property is taken into consideration when making this distribution. Not that it is divided but it does affect the relative economic circumstances of the parties.

My name is not on title to the house/car/boat etc. therefore it is not community.

See numbers 3 and 4 above. Only one name on the title doesn’t necessarily mean it is not community.

I worked hard all these years for my pension so it is mine. Or, I built this business myself without any help from my spouse, therefore it is all mine.

See number 3 and 4 above. I often tell my clients “I don’t care if your spouse sat on the couch and ate bon bons all day, your business/ pension is community property.

When my child turns 14 (or 12, or 16, or name an age) he/she can decide which parent to live with.

The age when a child can decide which parent to live with is the age of majority in Washington, Not only is there not an age when a minor can choose which parent to live with, most parenting specialists would not approve of putting a child in such a position.

If I move out of the house, it will be considered “abandonment” and I will lose my house and custody of my children.

No. While most divorce attorneys would advise making some arrangements for parenting time with the children before moving, you will not lose your rights because you moved out. Moving out does not affect ownership of the property. I really urge folks to get a consultation before they move but moving is not "abandonment" as it is in some states.

Disclaimer: These answers are intended for Washington State residents. The laws of every state are different and these answers may not apply in another state.

EXPERT HELP CRAFTING A PARENTING PLAN

Today's guest expert, Margit Crane, offers advice to parents crafting a parenting plan.

You can find Margit Crane at http://margitcrane.com

Preparing to Craft a Parenting Plan

You’re getting divorced. Your kids are shaken and you are a jumble of emotions. It is in this confusion and drama that you will be asked to craft a parenting plan. No small feat, to be sure. Hopefully, these fail-proof tips will guide your decisions:

1. Be consistent. This isn’t about you and your ex. This is about your kids. Forget about convenience. Divorce isn’t convenient. If you want your kids to thrive despite this upheaval, you need to be willing to be uncomfortable for their sake. What does this mean?

a. DO keep a consistent weekly schedule. It’s harder to do as a single parent but important to your child’s sense of security and well-being.

b. DO keep a consistent daily schedule. Again, children who know what to expect feel safer and more confident, and are able to form stronger bonds with parents and friends.

c. DON’T bring new people into your time together or into your home until you are in a committed long-term relationship. If you end the relationship, you’re not the only one to suffer and your kids learn that relationships are fleeting and people are heartbreakers.

2. Be an adult. Your child is not your confidant/e and is not responsible for your emotional, physical, spiritual, or financial well-being. You be the parent and let your kid be the kid.

a. Be responsible for co-creating and upholding your behavioral expectations and consequences.

b. Expect the behavior you’ve outlined and follow-through on the consequences, even if it’s painful for you to do. If you say one thing and do another, your kids will learn that the world - and, most particularly, YOU – is not trustworthy.

c. Get help if you need it. If your car broke down, you wouldn’t leave it on the side of the road and forget about it. That won’t repair your car. Ignoring a problem won’t repair your family either. Consult a doctor, therapist, or family coach if you are struggling.

3. Be light and polite always. This should be the rule in everyone’s house, divorced or not. And these behaviors apply to both kids and adults:

a. No name-calling, taunting, or teasing

b. No put-downs

c. Say “please” “thank you” “you’re welcome” “excuse me”

d. Don’t yell, nag, or lecture

e. Listen when someone is speaking to you.

f. Don’t use an insulting or disrespectful tone of voice when speaking to each other.

Remember: If you’re trying to convince someone to see things your way, you’re not having a conversation; you’re having a power struggle. Those don’t work.

Copyright Margit Crane 2011

Margit Crane, M.S., M.Ed., is passionately devoted to making growing up much easier for ADD/ADHD kids, discombobulated teens, and the stressed-out parents who love them! “You don’t have to sit around waiting for this latest ‘phase’ to pass,” she says encouragingly. With Margit, clients enjoy more confidence, smoother communication, fewer conflicts, closer relationships, and increased academic success, all while having a lot more FUN!

You can find Margit Crane at http://margitcrane.com