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Frequently Asked Questions About Divorce Mediation

WHY SHOULD I CONSIDER MEDIATION?
Mediation allows separating and divorcing couples to take control of planning their own futures. It is especially beneficial for parents, who though separating, will need to continue making joint decisions about their children well into the future. The decision making process learned in mediation can serve as a model for future communications. Also, mediated settlements have a consistently higher compliance rate because the husband and wife have created their own agreement.


HOW DOES MEDIATION WORK?
The couple meets with an impartial, non-judgmental mediator who helps them identify and explore various options as they clarify their interests and negotiate a settlement. The mediator works to maintain a balance of power during the process and when all decisions have been made, draws up a memorandum of understanding describing the settlement. This is generally taken to an attorney to be incorporated into a legal separation agreement and then filed with the county court for final judgment.


HOW LONG DOES IT TAKE AND WHAT WILL IT COST?
The complexity of the situation and the willingness of the individuals to be flexible as they pursue a fair agreement dictates the length and cost of the mediation. An average mediation may take around five sessions of two hours each, though this can vary from case to case; couples can expect to pay somewhere between $2,000 and $4,000 for a mediation of that length although individual mediators' fees vary. Fees are generally shared equally by the husband and wife.


WILL MY LEGAL RIGHTS BE PROTECTED?
It is always advisable that both parties show the memorandum of understanding to their attorneys to ensure protection of rights. It is also appropriate to consult with outside experts such as accountants, realtors, financial planners and attorneys during the process. Finally, the mediation process is confidential and information shared during the process may not be used in subsequent litigation.


WHAT IF WE DON'T GET FULL AGREEMENT?
Mediation is seldom wasted. Even if not all issues are settled, the couple can create an interim agreement incorporating those decisions they have made. They may elect to live with the interim agreement for a period of time and then return to the mediation table. Of course if they feel it is necessary, they can then seek legal counsel in negotiating the remaining issues.

Julie Denny
Reprinted from DivorceSource


Constructive Confrontation

Trapped, intimidated, afraid, angry, tearful, panicky. When I ask clients to word-associate with conflict, those are some of their answers. Yet conflict can be an opportunity for personal growth, improved communications, better relationships and even untapped creativity.

By mastering a few simple tools, you can alter your perception of conflict and learn to confront constructively:
  1. Understand what is really going on. Frequently, the issue on the table is not the problem. You're debating the final color of a brochure. Color may be less of an issue than how the decision is made. One person may want consensus among colleagues; another, in the interests of efficiency, may want to make the decision quickly and unilaterally; a third may require research data on market perceptions of color before making the decision. If you understand what is really going on, you'll be in a better position to deal with it.

  2. Hang on to your goal. Don't let unrelated issues distract you. You remind your Information Systems manager he promised to install your new PC by last Monday. He tells you he doesn't have time, he has to test new software, his son is in the Little League Championships and his car is on the blink. Tell him you're sorry he has so many distractions. Then ask him again when he can install it. That's the issue.

  3. Recognize that there are several ways to resolve a dispute. You've been asked to prepare a report by Tuesday. You are running late and your manager is steaming. Is the date immoveable? Could the report take another form? An outline? Bullet points with some fleshed out to indicate direction? Could different sections be written by other colleagues? Could it be an oral presentation instead of a written report? Could you request interviews of key, senior executives (all waiting for the report) in order to engage them in the process and also buy you some extra time? Examine the probable outcome of each of these and other solutions (relief that you're on the right track, enthusiasm of executives at your creativity, gratitude or displeasure of colleagues to be included in the project) Then select the best.

  4. Listen. For what is said and unsaid. In a heated discussion, people often drop clues that help you understand what's really important in the discussion. You and your partner are discussing an office move. She doesn't want to move because you won't be able to find a place within your budget, a move will be disruptive, it's too much of a hassle, clients will get angry at the interruption of work, deadlines will be missed and "Besides. I like walking to work."

    Also consider the unspoken. 93% of what is communicated in any dialogue is non-verbal. There are all kinds of signals in a dispute. What is her body language telling you? How about her tone of voice? Do you have the sense that there something she's not saying? Ask her.

  5. Validate the other person's point of view. This can move mountains. Let the other person know that you see her point of view, you understand why she feels that way and you probably would feel that way yourself if you were she. This does not mean you agree with her. It just means you think
    her point of view is legitimate. You are validating her as a person. You and a colleague are arguing over attendance at an important client meeting. She has a personal schedule conflict. "I understand what you are saying about Tuesday's meeting, Louise. If my daughter were in the school play I would want to be there too." Then stop. Say nothing more. You have demonstrated that you heard her and you understood her. Louise may then respond that she'd really like to be at the meeting, she cares deeply about the copy she wrote and she would like to present it to the client. Out of this may come a different day, a different time or a combination of Louise being
    there to present the copy, but other colleagues picking up the slack in follow-up brainstorming so she can get back for the performance.
Listen carefully. Validate the other person's point of view. Don't get distracted. Make sure that what you are debating is really the issue. Generate as many options for resolution as you can, exploring the probable outcomes-good and bad-of each of those options. The more information you each have, the easier it will be to resolve the conflict. And the better you'll feel about how you worked together to do so.

Julie Denny
Reprinted from the Business Women's Calendar
January 1999


Bias in the Mirror

Once again, headlines blare about despicable acts of racism, ethnic strife, "hate crimes," and other forms of intolerance across the country and around the globe. It is easy and natural for a person of conscience to click one's tongue and shake one's head in shame, anger, and disgust.

But standing so proudly on that moral high ground may be predicated on the most tenuous of footings.

When you pass a mirror, does a biased person stare back at you? For most honest people, the answer is as inescapable as it is uncomfortable, a resounding 'yes.'

For most of us, the most common and most seemingly benign bias is that we tend to ascribe higher value to people who seem much like ourselves. And lower value to those who don't.

Some of those similarities, and differences, can be subtle: pace of movement, voice inflection, shared geographic origins, similar taste in books or music or movies, common alma mater, and so on. Others are more blatant: age, speech accent, skin color, outward signs of religious faith. It is a trap and a fallacy to define worth or competence or qualification by looking in the mirror.

THE FALSE, POISONED VIEW
The word 'bias' comes from French and Greek roots. It literally means "on a slant." When we view someone with eyes influenced by our bias, we aren't looking directly at who they are. We're seeing them through a distorted view. So it is difficult to really see who they really are.

The challenge is to recognize our own biases. At the core of a bias is an assumption: People like me probably are good; people who aren't . . . well, who knows? Such an assumption, when stated forthrightly, sounds harsh, unfair, and distasteful. And that's the funny thing about assumptions, they're almost always silent and invisible --like carbon monoxide gas. And just as deadly when they go undetected.

Even "positive" prejudices can be bad. To wit: That minority group is smarter than most. That other one makes for better police officers, bridge workers, lawyers, or whatever. Such "not negative" statements may not seem harmful on their face, but they are as unfair to those included in and those excluded by their bias as any others.

It is said that what we don't know can kill us. Just as assuredly, what we don't admit to ourselves can poison us while unconsciously tainting our actions and doing harm to others that our better selves would never knowingly do.

Seeing past apparent differences to peer into the less visible or even invisible attributes of another, first requires us to tear down the impenetrable albeit invisible screen of our own prejudices, biases, and wickedly tacit assumptions.

The first step in this personal rehabilitation is to spend some quiet and frightening moments penetrating the protective vault around our deepest most intimate secrets kept hidden even from oneself. Only after looking in the mirror and knowing you see a biased person there can you move past the prejudice to see another for who they really are. Another person quite like, and quite different from, you.

TAKE-AWAYS
  • Recognize how bias can cheat you as a leader - and everyone else around you. Biases foreclose possibilities. They deny potential and trap you in the prison of unexplored and unexploited possibilities.

  • Seek your biases. Unmask them. Begin the hard work of moving past them.

  • Look at others who are perceptibly different. Note how you sense such difference. What do you associate with those obvious differences? Are your assumptions valid? Are they fair? With effort, can you see past that angular, distorted, and terribly limiting view? What liberating possibilities open-up when you do?
Reprinted with permission from Don Blohowiak,
The Leader's Letter


Choosing a Divorce Mediator

Finding and selecting a mediator can be easier if you follow some simple steps. In the best of circumstances, divorce is an uncomfortable process. Take the time to assure you have a mediator whom you like, respect and believe to be qualified to help both of you negotiate that equitable settlement.

Start by generating a list of four or five mediators in your area. Comparison shopping is just as important here as anywhere else. By talking to a number of mediators you will not only become clear on which one feels right for you, but you will also familiarize yourself with the process, the topics you'll need to discuss, the costs associated with mediated divorces and the issues involved in selecting a mediator.

Names of mediators are available through several channels including the Yellow Pages, state mediation associations, the Academy of Family Mediators in Lexington, Massachusetts (the national family mediation association), and local attorneys, therapists and clergy. In compiling your list don't rule out mediators a little distance away from your home. The right mediator may be worth a drive.

Now call each of the mediators and check him or her out. Factors to consider in choosing your mediator are:
  1. What is the mediator's training? Anyone can hang up a shingle and call herself a mediator. Make sure your mediator has been trained by an Academy of Family Mediators-approved training program. The basic Divorce Mediation training is 40 hours. Practitioner Members of the Academy are then required to take an additional 60 hours of advanced training, work with an approved Consultant for a minimum of 4 hours and obtain continuing education credits every two years of at least 20 hours.

  2. How long has the mediator been practicing? Practitioner members of AFM (as opposed to General members) have put in a minimum of 250 hours and mediated at least 25 cases. To assure a level of competence, it is a good idea to restrict yourself to Practitioner members. [A note here: I remember with gratitude the couple who took a chance on me when I was just beginning. When I told the prospect I was just starting out, she responded, "Well you have to start somewhere," and set up an appointment. I don't want to deny my colleagues the opportunity I had, but if you decide to go with a General rather than Practitioner member, do so in full knowledge that they are less experienced.]

  3. How many divorce cases has he mediated? Mediators often handle community and business disputes as well as divorce. The issues involved in divorce are very specific and a certain level of knowledge about those issues is critical. Make sure the mediator has adequate experience with divorce mediation.

  4. Does the mediator have any references? Can the mediator provide you with names of other mediators, therapists, or attorneys who will vouch for his or her qualification? Because mediation is confidential, the mediator may not be able to give you names of former clients.

  5. Is she viewed as an authority on the process of mediation? Has the mediator written any articles or served on any association boards, trained others or made any speeches on the subject of mediation?

  6. What is his mediator's style? Mediators' processes vary significantly. It is useful to understand that some mediators are highly directive, offering evaluation of likelihood a judge will sign off on one or another option in court and giving you concrete proposals for resolution of conflicts; other mediators opt for a more facilitative approach empowering the couple over and over again to make their own choices through deft questioning and discussion. Neither is right or wrong. They are just different. Ask yourself how much in control of the negotiation you and your spouse want to be. Get the mediators to discuss their approach to mediation. It will help you become more knowledgeable about the process.

  7. What are the mediator's fees? These vary significantly from region to region, but a comparison of various mediator's fees in your area will be useful. Most mediators require payment at each session. Some will take a retainer up front. There may be a flat fee for preparation of the Memorandum of Understanding, the final document of the mediation. Clarify and compare.

  8. Does the mediator offer a free consultation? This is a great way to get to know the mediator and become familiar with the process. Not everyone offers it, but you should ask. Sometimes mediators offer the consultation free if the couple continues with the process and charge a minimal fee if they don't.

  9. Does the mediator have materials to help you make your decision? They might include a brochure, specific information on the mediator, overview of divorce in your state, child support guidelines, issues to be covered in divorce mediation, relevant articles. Materials are a reflection of mediators. If you have the sense the materials are slap-dash, so might the process be. If on the other hand, the materials are instructive, relevant and well put together, it's more likely the mediator's process also will be.

  10. What is the mediator's point of view about your having an attorney? Good mediators recommend that attorneys for both parties review the agreement, a Memorandum of Understanding, before it is signed. This assures you protection from any legal oversights during the mediation. Mediators frequently can supply clients with a list of mediation-friendly attorneys who will protect you from those legal oversights without undermining your choice to collaboratively negotiate.

  11. How do you feel about the mediator? Chemistry counts. Divorce is never fun. If you are uncomfortable with a mediator, for any reason, you should seek another one.
Julie Denny
Reprinted from DivorceSource


The Cost of Conflict

While no one likes confrontation with colleagues, clients, staff or managers, conflict is an inevitable part of everyone's workplace experience.

CONFLICT KNOWS NO BARRIERS
  • Employee relations disputes erupt over perceived harassment and discrimination
  • Peers disagree about respective responsibilities
  • Partners have differing views about strategic direction
  • Managers are frustrated with staff who don't perform up to expectations
  • Freelancers disagree with clients about what constitutes completion of assignments.
CONFLICT CAN COST
Unmanaged conflict is a barrier to productivity and puts companies and employees at risk. Consider the potential costs:
  • To prepare for a court discrimination case, companies report spending between $10,000 and $50,000.
  • The average jury verdict in wrongful termination cases is more than $640,000 and companies lose 64% of the cases.
  • The average award for a sexual harassment case is $38,500; however, a recent judgment against Mitsubishi Motors resulted in a $34 million penalty.
  • Turnover costs for an employee today run between 75% and 150% of his or her annual salary.
  • Up to 30% of a manager's time is spent dealing with conflict.
  • The EEOC received more than 80,000 claims for discrimination in 1997 and another 18,000 for subsequent retaliation
There are many hidden costs to conflict, most never considered in management calculations. They include costs associated with:
  • lost time as executives give depositions
  • severance
  • hiring, including advertising, screening, interviewing
  • training of new staff
  • reduced productivity
  • turnover
  • absenteeism
  • low employee morale
  • customer dissatisfaction as result of depleted, demoralized staff
  • lost sales
CONFLICT IS AN OPPORTUNITY
Managed properly, conflict can be an opportunity for clearer communication, better understanding and increased productivity.

Conflict is best addressed at its source. When organizations put structured systems into place to address employee grievances, they are less likely to incur these costs. When employees feel their concerns are heard and their grievances addressed even when change is not always the outcome, job satisfaction increases and as a result, productivity, which goes right to an organization's bottom line.

There are a number of steps to be taken to reduce the risk and improve operations:
  1. Establish a written policy governing all types of employee discrimination.
  2. Conduct regular training for managers about what constitutes discrimination.
  3. Implement a structured grievance process, including informal and formal channels.
  4. Respond to grievances promptly and thoroughly.
  5. Institute company-wide conflict resolution or communications training.
One of the best ways to implement a grievance process is to set up an internal task force made up of representatives from different levels, different functions and, when possible, different geographical locations. A system designed by such a cross section of employees stands the best chance of being effective, exactly because it is designed by the people who will use it.

As part of the design process, establish criteria for measurement of success. Allow the task force to continue to monitor the system using those criteria as guidelines. Make certain that it is used, effective and fair. Conduct regular surveys and interviews among employees to find ways to improve the system.

Most of all, take conflict seriously. Take steps to address it. Use it as the opportunity it can be for better communication and increased productivity across the board.

Julie Denny
April 1999