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.

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.

THE IMPACT OF DIVORCE ON A BUSINESS

From the desk of the divorce lawyer

THE IMPACT OF DIVORCE ON A BUSINESS

Karin Quirk, Attorney at law, Kirkland, Washington

While ultimately a personal matter, divorce affects business in time, money, and lost productivity. An employee going through an emotionally troubling time may be less productive, miss work and may involve other employees in the drama. Many business also are concerned about revealing private or sensitive information.

When the business owner is the person involved in the divorce process the consequences on the business can be even more dramatic, if not devastating. If the business owner is distracted, the business suffers. The legal discovery process can be as distressing as a tax audit with even greater economic consequences. A small business may also be destroyed by the need to liquidate assets to affect the community property division.

It is in a business owner’s interest to know a divorce attorney sensitive to the affect of divorce on business. An attorney who explores alternatives to the adversarial process and works with the parties on reasonable resolution that allows them to get on with their lives with the least emotional trauma and economic loss.

Divorce happens to roughly half of all married couples and often occurs after ten, twenty or more years of marriage. Many family law attorneys are developing new ways of diffusing the acrimony and trauma of the traditional adversarial process. Gaining popularity across the United States is the concept of collaborative divorce.

Collaborative Law – the new paradigm

In this process, each side is represented by his/her own advocate. The parties and their attorneys agree that they will not engage in the traditional “divorce war” which is the litigated divorce. The lawyers are committed to full disclosure of all assets and to providing advocacy for their clients while maintaining civility with each other.

The “team” may include ancillary professionals: An accountant or actuary may be needed to determine a value of a business or a pension plan; parents may seek guidance from a child mental health professional in developing the parenting plan; and counselors may become involved to improve the communication process. The parties may even choose career counseling for a previously non-employed spouse.

Save time, money, emotional trauma and preserve your privacy

Statistics show that collaborative divorces cost at least one-third less and are completed in a much shorter time than the traditional litigated divorce. The emotional trauma is managed in a compassionate way. The collaborative model encourages parents to put the needs of their children first.

When parents are involved in acrimonious custody battles, not only do the children suffer, but the parties often go to court year after year trying to modify the original plan, often spending hundreds of dollars. In collaborative law the parents provide a method for adjusting the plan for changes in circumstances, thus reducing emotional trauma as well as costs.

Perhaps the most appealing aspect of the collaborative divorce to business persons is the privacy this model provides. The financials and all the negotiations remain private. No public record is created which provides embarrassing or misleading details. The final agreement remains private.

It is possible to avoid the divorce wars: www.divorceforgrownups.net

__________________________________________________________________

Karin Quirk is a family law attorney trained in divorce mediation and collaborative law. For more information see www.divorceforgrownups.net Contact Karin at Karin@karinquirk.com or call 425 289 0293 for a complimentary confidential consultation.

Note: This article was written in September 2006 and first published in Eastside Business Journal. Thank you Joe Kennedy for giving me my start as a commentator on collaborative divorce.

Parenting Specialist Margit Crane Offers Advice to Divorcing Parents

Guest Blogger today is Margit Crane: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

How to Talk to Your Kids When Your Ex is a Jerk


I’m sitting in my office with newly 16, Marley, and her mom. Marley begins to cry because her father – again – put off her birthday celebration. She has been 16 for two weeks and he hasn’t celebrated with her yet. Mom says, “I’m sorry your father is such a jerk. I wish there was something I could do to change him.”

I’ve never met Marley’s dad but I’ve been coaching with Marley, her sister, and their mom for 7 months and I’ve heard about him from time to time. I suggest to them that it may be fairly accurate to call him a jerk, but isn’t it too easy to do so? Maybe he’s sick, literally.

Divorce is uncomfortable and confusing in the best of situations. How much the more so when parents are picking at each other, either directly or via the kids? I know that some people are jerks but I don’t believe that that’s a helpful designation or description.

Sometimes we adults struggle with alcohol or drug abuse. Sometimes we’re depressed or suffer from debilitating anxiety. But I don’t believe that most parents willfully ignore their children or set an intention to make them suffer. My parents, for example, were quite ill and, although they did some shocking and hurtful things, I don’t think it was intentional. I think that if they could have been better parents, they would have been. And I think this is true of most parents. It is sad when a parent can’t step up to the plate for his/her own child, but there may be extenuating circumstances.

So instead of calling your ex a jerk, remind your kids that they are loved beyond belief and that sometimes fathers or mothers feel sick or are not themselves and they can’t be the kind of parent that they dream of being. You don’t need to be specific about the kind of illness. Kids know what it’s like to be sick or to feel “not themselves.”

Remember, too, that rarely is a problem one-sided. Often a conflict grows out of a long-time personality clash that was never resolved and continued to grow. Both parents can contribute to the dis-ease of a marriage and we need to check our own behavior too.

If we can’t have a civil conversation with our ex, we are both responsible. Perhaps we have been unwell as well? If so, it’s time to own that and get some help for ourselves. If we don’t, we teach our kids that we’re not responsible for our own behavior and our own choices; some jerk is.

Not a very empowering lesson, is it?


Copyright Margit Crane 2011

Expert Advice Regarding Parenting and Divorce

Every now and then I like to invite guest opinions. I have been following Rosdalind Sedacca for several years and find she has very sensible advice for divorcing parents.

Parental Discord – Not Divorce – Most Damages Children!

May 15th, 2010 | Author: Rosalind Sedacca

Is it divorce or parental discord that most damages children? Answers are finally coming in!

A recent article by marriage and family therapist Ruth Bettelheim has much to say on this topic that is both relevant and, quite surprising for many. That’s because she refutes common misconceptions about divorce and addresses the real issues of concern.

According to Bettelheim, “Studies conducted in the past 20 years have shown that on all meaningful measures of success — social, economic, intellectual and psychological — most adult children from divorced families are no worse off than their peers whose parents remained married.”

Researchers have found two explanations for this, notes Bettelheim. “Children who have to cope with their parents’ separation and post-divorce lives often grow resilient, self-reliant, adaptable and independent. And children benefit from escaping the high-conflict environment of a rocky marriage. After their parents’ separation, as conflicts fade, children recover.”

There is much to consider in those last two sentences. Children actually benefit from being out of high-conflict homes! In fact, studies show that it is “sustained family conflict that actually causes children to experience the kinds of problems that are usually attributed to divorce: low self-esteem, depression, high anxiety, difficulty forming relationships, delinquency and withdrawal from the world.”

Bettelheim goes on to say, “Given that reducing family conflict is good for children, the best way to protect them during divorce would be to minimize the acrimony of the proceedings.”

That is the foundation of a child-centered divorce. My supporters and I have long contended that it is not divorce per se but the way parents handle divorce that harms their children. From time to time I am contacted by emotionally charged parents who are vehemently “anti-divorce.” While they acknowledge I am well-meaning in my efforts, they point their finger at divorced parents and blame them unequivocally for destroying their children’s lives.
In reality, life is not black and white, nor are the consequences of divorce. While I certainly do not advocate divorce as a solution to marital discord, in many cases it’s a saner solution than living together in a toxic marriage.

I speak from experience when I say this because I am a child of parents who should have divorced – and didn’t. The emotional scarring I experienced is basically the same as felt by children of parents who make damaging divorce mistakes. The insecurity, lack of self-esteem, anxiety, depression, sadness, guilt and shame I carried through my childhood were the consequences of parents so caught up in their emotional drama they had little awareness of what their turmoil was creating for their children.

Divorced or not, when we make decisions that that don’t take children’s fragile psyches into account, the outcome is painful for those children!

Bettelheim makes a strong case for divorce mediation as a resource to keep parents from making destructive, vindictive decisions about custody and child support. She’s totally right. She ends her piece saying, “In an adversarial custody battle, no one wins, but children are the biggest losers of all. Intelligent legislation could promote the one thing that children of divorce need most: peace between their parents.”

The truth is, all children need and deserve peace between their parents. Let’s focus less on judgmental, self-righteous finger-pointing and more on educating all parents about harmonious, effective parenting – and we’ll all be better off!

* * *
Rosalind Sedacca, CCT is the author of How Do I Tell the Kids about the Divorce? A Create-a-Storybook™ Guide to Preparing Your Children — with Love! Acclaimed by divorce professionals, the book provides fill-in-the-blank templates that guide parents in creating a family storybook with personal photographs as an ideal way to break the news. For more details, a free ezine, articles, coaching and other resources visit http://www.childcentereddivorce.com.

Who is Karin Quirk?

This biography was written by someone else. She gathered information from my web site and other public documents. I guess this is a pretty good synthesis of the information.

Ms. Quirk has provided highly professional and affordable legal services since 1997. Her law office, located in Bellevue, Washington, focuses on estate planning, collaborative divorce and family law. Karin is a member of several professional organizations including, King County Collaborative Law, International Academy of Collaborative Professionals, Washington State Bar Association, King County Bar Association, Association for Conflict Resolution, Real Property and Estate Planning Sections of KCBA, WSBA. Ms. Quirk has received a number of awards and recognitions including,"Mediator of the Year" - Consumer Business Journal 2002, “American Jurisprudence Award: Trusts and Estates”, “American Jurisprudence Award: Federal Income Tax”, “Associate Editor” Western State University College of Law, Law Review, and most recently Ms. Quirk was named a 2010 FIVE STAR Wealth Manager^SM in Seattle magazine for scoring high in overall satisfaction. Only 7 percent of the wealth managers in the Seattle area were thus named after an independent survey of area consumers, financial service professionals and Seattle magazine subscribers that focused on criteria such as customer service, value for fee charged, knowledge/expertise, meeting of financial objectives, and more.

Is Your Divorce Too Complex to Be Cooperative?

Lately I have been seeing print and television ads for "complex" divorces, implying that some divorces require special handling by only those certain lawyers. Sometimes folks approach me and tell me they would like to engage in a respectful, cooperative divorce but their situation is too complicated. So when might a case be too complicated for a an amicable resolution?

Surprisingly enough, a case is not more complex because there is a lot of money involved. Some of my most difficult cases are ones where there simply is not enough money to go around. Often there is a great deal of rancor or the parties are really desperate and can't seem to find a peaceful resolution. On the other hand, a couple that has substantial assets can work very well with a Certified Divorce Financial Planner (CDFA) or even their own investment advisor to work out a reasonable resolution and division of assets. So a divorce involving a lot of money need not be "complex" and certainly can be approached in a cooperative manner.

A family business can be a little more challenging. I have seen small businesses destroyed by divorce because the process was so invasive and time consuming. If a family business is involved there is even more impetus to a cooperative approach. A neutral business appraiser can be engaged to help the couple determine a reasonable value for the business and the couple can determine a way to divide assets in such a way that the business remains viable.

Some people believe (or have been led to believe) that a divorce is complex if there are children involved and the parents are not in complete agreement on a parenting plan. Again, (is there a theme here?) it is advantageous to approach a divorce with children in a cooperative manner. I often engage a mental health professional who specializes in children to help the parents determine a parenting plan that is child-centric rather than parent-centric. The children certainly will be much better off if their parents can demonstrate that they can resolve differences in a respectful manner.

The cases that are extremely challenging is if there is domestic violence or impairment by drugs or alcohol. (I mean serious impairment, not just one party drinks more than the other). While I do know of instances that have had amicable resolutions while dealing with domestic violence or mental impairment it requires a great deal of commitment on the part of the party impaired or the violent one. Unless they agree to treatment there is no opportunity for cooperation. In these cases I have a referral list of lawyers who will not make it worse and will treat their client with respect. You won't find these lawyers in a TV ad.

So there is my bias toward respectful cooperative divorce. Most likely your divorce is not too complex for this approach.

Tax Tips for Divorce

This advice comes from my friends at Special Solutions: http://www.specialsolutions.org/

One more reason why you want to make sure that you include tax planning in your divorce decree and child support.

Warning! Don’t violate the Child Contingency Rule!

If any amount of alimony specified in the divorce decree is reduced (a) upon the happening of any contingency related to the child or (b) at a time that can be clearly associated with a contingency related to the child, then the amount of the reduction will be treated as child support, rather than alimony, from the start. Code Sec. 71(c)(2). Reg. §1.71-1T(c)

What is a contingency? A contingency relates to a child if it is dependent on an event relating to the child, regardless of whether the event is likely to occur. Some examples are:

- Reaches age 18, 21 or the age of majority in their state
- Gets married
- Graduates from school
- Leaves home
- Joins the military
- Gets a full-time job

Section 71 of the IRC provides two situations where payments would not qualify as alimony if they are reduced at a time clearly associated with a contingency relating to the child.

Six-month rule

The first situation occurs when the payments are to be reduced not more than six months before or after the date on which the child reaches age 18, 21 or the age of majority in their state. And this means all three ages!

Multiple reduction rule

The second situation is when there is more than one child. In this instance, if the payments are to be reduced on two or more occasions which occur not more than one year before or after each child reaches a certain age, then it is presumed that the amount of the reduction is child support. The age at which the reduction occurs must be between 18 and 24, inclusive, and must be the same for each of the children.

The following example shows what many attorneys have incorrectly advised their clients to do.

Example: Kevin and Karen are getting divorced and their son, Josh, is going to live with Karen. Kevin is going to pay Karen $3,000 per month maintenance plus child support. Kevin’s attorney says “Josh is graduating from high school in 5 years, so why don’t you pay Karen maintenance for 5 years.”

Or the attorney will say, “Since Josh is graduating in 5 years, why don’t you pay Karen maintenance of $3,000 a month for 5 years and then reduce it to $2,000 a month for an extra 3 years. Karen won’t have as great a need when Josh leaves home.”

This is creating a serious tax problem for Kevin. The IRS may consider the reduction of $1,000 a month to be child support because it coincides with a child contingency. The IRS will then go after Kevin to collect the taxes he saved by calling it maintenance and they will make it retroactive from the beginning. Five years (60 months) times $1,000 is $72,000 that he will have to pay tax recapture on!