Friday, February 4, 2022

Now Is a Great Time to Mediate, Not Litigate

Doorway, Paris

If you’ve read any of my blog posts, or heard me interviewed, or even talked to me for more than five minutes, you probably already know that I adore mediation for conflict resolution. It is effective and saves people money and emotional wear and tear. (Plus, there are a zillion – or at least fifty thousand – more great benefits from mediation instead of litigation, but since I’m trying to keep it brief, I’ll stop here!) 

This week I participated in a Zoom meeting with the Family Law bench and bar, which included updates on Covid requirements, Covid delays, and budget constraints. As I listened to the conversation, the refrain that kept repeating in my head was: Now is a really, really, great time to mediate instead of litigate.  The judges and clerks are working harder than ever but because of budget and Covid delays, fighting in court is taking longer than before. It would appear that for the foreseeable future, there will be new Covid-requirements, adding to the litigation maze, which is already fraught with delays, frustrations, and costly legal bills.

When I put all these facts into the hopper, to me, the message is clear: If you possibly can, choose mediation instead of litigation! Of course, I do understand that not everyone wants to or can mediate – some circumstances seem to necessitate the strong hand of a judge in order to obtain the divorce decree – and still, I’m optimistic that with the current state of the courts, more and more people will mediate instead of litigate. Heck, maybe the court system will institute some formal incentives to entice people out of the courts and into a satisfying mediated judgment instead….

If you want to talk about how you’re interested in mediation but you think it couldn’t possibly work for you, or if you have any questions, please let me know: karen@karenjusterhecht.net or 510-210-3796. 


 

Wednesday, January 26, 2022

What to Do If Your Mediation Goes into a Tailspin

 

Street Scene, Paris

   It goes without saying that I am a true believer about mediation – otherwise I wouldn’t be doing this work.  Instead I’d be on an island in the sun...Okay but back to conflict resolution reality….

I know that mediation isn’t always easy on people, and still, I believe that considering possible outcomes, financial expenditure, and emotional health, mediation offers much better options than litigation. I could probably talk to you all day long about why I believe in mediation, but I also understand that sometimes mediations do fall apart. 

I have a few thoughts about how to try to keep a mediation from tanking and ending up in a nasty, expensive, court fight.

  • ·        Plan ahead – agree that if a stalemate arises, you and your ex will engage in a set plan (*see below); sort of a conflict resolution inside of conflict resolution;
  • ·        Your plan could include any or all of the following (or anything else that seems reasonable to the two of you) – a cooling off period, e.g., 2 to 8 weeks without trying to work on it, an actual resting period; commit to a discussion w/your mediator to get to the bottom of the reason(s) to quit mediation; active listening and agreement to participate in good faith to try to resolve the conflict within the conflict;
  • ·        If you are already working w/counsel, see if the attorneys can get past the stalemate, in discussion without the spouses, in which the attorneys confer and then communicate with their clients;
  • ·        If working with counsel, perhaps change attorneys or agree to proceed in mediation without attorneys;
  • ·        Consider changing mediators;
  • ·        Before ending mediation and heading to trial, consider if there are some issues that can be mediated (e.g., custody schedule, or spousal or child support, or allocation of assets, or how to divide the book collection, etc.), resolve these by agreement and if the remaining issues absolutely can’t be addressed in mediation, go to court on those issues.

There are some situations, of course, when mediation may not offer a viable remedy. For example, if your ex is stalling and has zero intention of participating in good faith, if there is a time-sensitive issue (e.g., impending re-marriage, death, financial consequence, etc.), or in situations of dangerous domestic violence.  If you’re engaged in mediation and you or your ex want to throw in the towel and head to court, I hope that my suggestions might be helpful to try to save you from a knockdown dragged out court fight.

If you want to talk it over, you can contact me anytime: Karen@karenjusterhecht.net or 510.210.3796. Hang in there and remember that even miserable times don’t last forever….