Category Archives: Mediation

Practicing Family Law In The 21st Century – Series Post No. 5: Swimming In The Mediators’ Pool

On March 14, 2013, the South Carolina Supreme Court had ordered that, effective June 1, 2013, family court mediation would now become mandatory in 33 counties [South Carolina Supreme Court Court-Annexed Alternative Dispute (ADR) Rules]; however, I would bet the ranch that, mandatory or not, there is not a single attorney practicing family law in any one of the 46 counties in South Carolina who has yet to participate in a family court mediation.  Mediation has now become not only an integral part of the family law lexicon in South Carolina, but it also is very much at risk as being viewed and considered merely another stage in the arc of the family court litigation process.

“Mediation is the art of recovery”.  The objective of mediation is, and always should be, to return your clients’ futures to them by wresting control of those “futures” from the hands of strangers (i.e., judges, attorneys, guardians ad litem, mediators, etc.); mediation is, and always should be, intended to keep your clients as far away as possible from the vagaries and uncertainties of the “family courtroom experience”; mediation is, and always will be, intended to stop the creation (or formation) of your clients becoming lifelong enemies of one another, while allowing your clients to settle and resolve their conflicts on their terms, not yours, and by doing so, enable them to recover from the exquisite, indescribable pain of divorce.

An excellent Upstate family law attorney and close friend told me she was delighted to know that, even in my semi-retirement, I would still remain part of the “mediators’ pool”.  I know she meant that as a compliment, and I took it as such.  But the larger point is the most obvious one …

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“Consider These Tax And Social Security Consequences When Splitting Assets In A Divorce” – an article by Liz Skinner for Investment News

Several days ago my CPA, Thomas W. Cox, of Cox, Cauley & Richardson in Anderson, SC, sent me an article entitled “Consider These Tax (And Social Security) Consequences When Splitting Assets In A Divorce”.  The article is written by Liz Skinner for Investment News, and although brief, it provided several interesting and helpful “points for consideration” for family law attorneys who may have clients currently, or close to, falling into these “tax and Social Security categories” (for the family law attorney, these areas are often the “black holes” of family law).

It will only take you a few minutes to read this article, and you may find it immediately beneficial regarding your currently pending cases.

Here’s the link to the article: “Consider These Tax Consequences When Splitting Assets In A Divorce”.

And, as always, good luck out there.

Comprehensive Parenting Plan Format – As Revised – 2015

This blog will be atypically brief so that I can get to the point and purpose of it.

As I have stated (and often repeated), the practice of family law in South Carolina – and, indeed, across this nation – requires that in your representing families and children in crisis at perhaps the most vulnerable times in their lives, you must constantly put into play a dazzling array of personal and professional traits and skills; and because family law attorneys cannot foretell the future nor guarantee perfection in the “results”, the best we can ever hope to achieve is to practice our craft at the highest levels of performance.

We do that by our constant search for the right answers.

There’s a passage in a longer quotation to which I often refer – “make your decisions as wisely as possible and then forget about them, because the moment of absolute certainty never arrives”.  And to this quote I can add: in life, you’ll never learn anything by just asking questions … it’s only when you’ve searched for, and found, your answers will you have truly learned something.

Family law attorneys learn by:

  • never being satisfied that you’ve found the “right” answer;
  • always researching all available legal references and resources, including frequent visits to the internet;
  • attending CLEs where you can actually learn something new, and not just “get your hours”;
  • never hesitating to contact your colleagues for advice and information;
  • constantly trying to keep abreast of new statutes, appellate court decisions (both published and unpublished), court rules, administrative rules, and the local trial and procedure practices favored by the judges in your judicial circuits; and
  • constantly gathering and gleaning information and materials from the work product of your fellow attorneys.

In 2013, I added a “parenting plan format” to the “articles” menu of my website, and over the past several years that form has received a pretty good number of “hits”.  However, several months ago I began working on a revised and much more comprehensive format with an objective of creating something more extensive and detailed, while still trying to keep the format “user friendly”.  And today, January 1, 2015, I’m posting this blog and inviting any of you who might be interested to visit this link and use these materials in any way you believe they will be beneficial to you and your family law practice.

And let me add my standard “disclaimer” that, as with anything written, I always consider these forms a “work in progress”; and, consequently, over time and as the law or circumstances change or warrant, I will always be making modifications to them, and I will always welcome, respect, and benefit from, your comments and criticisms.

Here is the link:  Comprehensive Parenting Plan Format – As Revised – 2015

 

Practicing Family Law In The 21st Century – Series Post No. 4 – Part 3: The Client’s Dilemma – “Placing Your Future Into The Hands Of Strangers”

In Parts 1 and 2 of the posts in this series I discussed the “mediator’s dilemma” and the “attorney’s dilemma” inherent in the paradox of the family court system; and it was my intent (1) to try and raise several very real-world problems which we encounter almost daily in the difficult practice of our profession, and (2) to force us to think or re-think how we prepare for, approach, and participate in, the mediation or settlement process which is so critical in providing the clients/parties/litigants with some measure of control over their lives.

With that stated, and in repeating a point I made in Part 2 of this most recent post, it is easier (but not necessarily more lucrative, and with a path certainly more fraught with risks than rewards) for a family law attorney to go to trial on every case than it is for that attorney to make the necessary efforts to negotiate a resolution (settlement) of that same case.

Think of it this way: by your going to trial in every one of your family court cases you’re completely eliminating ever having to worry about having those difficult conversations with your clients regarding the “best case – worst case” scenarios which could result from that trial.  And you’re also going to be able to place the entire blame on your trial judge for any poor or unexpected outcomes … but you’ll be able to take the complete credit for any “victory” (in whatever form a “victory” may seem to your client and you).

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Practicing Family Law In The 21st Century – Series Post No. 4 – Part 2: The Attorney’s Dilemma – “The Attorney’s Notion Of Fairness – Trying To Attain The Unattainable”

In Part 1 of this series post I tried to frame a “dilemma” that family court mediators frequently encounter in their efforts to reach the shared understanding with the parties and their attorneys that achieving a satisfactory (and satisfying) resolution of the litigants’ case has very little, if anything, to do with the “cosmetics of fairness” (e.g., the “look” of fairness versus the actual substance of a workable agreement).  And I had provided a “link” to an amazing Oklahoma family court case where the wife was awarded one billion dollars in cash and other assets, but was not at all “satisfied” with the decision, finding it to be inequitable (in other words, it didn’t look fair, based, apparently, on the total approximate value [$18,000,000,000] of the husband’s “worth”).

I concluded Part 1 by including an excerpt from the April, 2014 South Carolina Court of Appeals opinion in the case of Simcox-Adams v. Adams; and in transitioning into Part 2 in this series, I want us to “revisit” an interesting part of that excerpt:

“Finally, we believe equity dictates this result … ‘stating the time honored equitable maxim that all courts have the inherent power to (do) all things reasonably necessary to ensure that just results are reached to the fullest extent possible.'”  (All case citations are omitted.)

Re-read that excerpt again very carefully.  Where would the word “fair” fit into this maxim?  Could “fair” be inserted in place of the word, “just” (e.g., “…to ensure that fair results are reached to the fullest extent possible”).  But wait a minute, why would this maxim include the words “to the fullest extent possible“?  Why would we need to conditionally qualify the terms “just” or “fair” with the words “fullest extent possible”?  After all, fair means fair, doesn’t it?  And as a family law attorney, certainly we know what “fair” means in the resolution of family court litigation … and your clients certainly know what “fair” is supposed to look like.

And so we have now arrived at every family law attorney’s dilemma – the “crossroads” where the attorney’s notion of fairness must square up with the client’s … where the attorney is compelled by circumstances only marginally within his or her control to attain the unattainable – perfect fairness.

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Practicing Family Law In The 21st Century – Series Post No. 4 – Part 1: The Mediator’s Dilemma – “The Fallacy Of Fairness”

I’m hoping this new post will find you interested enough to spend some of your valuable time traveling down this road with me; and I, of course, always hope that you’ll ultimately find it to be beneficial to your clients and you.

You’ll first need to read the following recently published article to understand what I intend to accomplish with this latest post (this series will be in at least two, if not three, separate parts):

“Ex-Wife Of US Oil Baron To Appeal $1 Billion Divorce Award”

And then read this “follow-up story” which was printed several days later:

“Oklahoma Oilman’s Ex-Wife Plans To Appeal Nearly $1 Billion Divorce Settlement”

Briefly, in Oklahoma after a 9-week trial, the family court judge awarded the wife one billion dollars [if I’m counting the zeroes correctly, I believe that’s $1,000,000,000] … and her attorney stated that this amount was “not equitable” to his client, because the husband’s current worth was approximately $18,000,000,000, and that the wife would appeal the family court judge’s decision.

In an effort to create some measure of scope as to the size of the wife’s award, Forbes Magazine listed the 1000th wealthiest person in the world as having an estimated “worth” of $1.8 billion dollars.  I’ll also break it down this way: if your gross income was $100,000 a year, it would take you 10,000 years to earn one billion dollars.

However, in this Oklahoma case, as in so many others in South Carolina and across this nation, the amount of this award had absolutely nothing to do with this wife’s ability to sustain and enjoy the quality of her life and her lifestyle, at its maximal level, forever … rather, it had everything to do with this “fallacy of fairness” which every family court mediator encounters in virtually every mediation where the parties are dividing up “things” which they possessed “as of the commencement date of (their) marital litigation”.

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Practicing Family Law In The 21st Century – Series Post No. 3: Solving The “College Expense” Conundrum – A Form For Your Agreements

If you were practicing family law in South Carolina prior to 1979, then you were able to advise your clients, with some reasonable degree of certainty and with only certain limited exceptions (such as a child’s disability), that when their child reached the age of 18 and became an “adult”, the parents’ legal obligation to provide court-ordered financial support for that child ended.

And then this happened …

In 1979, the South Carolina Supreme Court, in the then precedent-setting case of Risinger v. Risinger, determined that a parent’s potential court-ordered obligation to provide child support for his or her child did not necessarily stop at the “water’s edge of adulthood”, but rather, if that 18-year old child decided to go to college (or have a “post-secondary education”), then both that child’s decision and his or her college-related expenses could be considered “an exceptional circumstance” under the now-repealed Section 14-21-810(b)(4), SCCA, [this code section was replaced by the current Section 63-3-530(A)(17)] which supported the family court’s authority to require the parents to continue to provide college-related financial assistance for that child, as a matter of law.

And from 1979 until 2010, that issue was settled law in South Carolina – stare decisis.

And then this happened …… Continue reading →

Exempting Your Family Court Case From Mandatory Mediation

Although it may be counter-productive of me to post this suggestion, given that I make my living mediating family court cases, in those cases which warrant this action I’m wondering if you’ve ever made (or considered making) a formal request of your chief administrative judge (CAJ) to exempt your clients’ case from mandatory mediation?

ADR Rule 5(e), SCADR, states the following:

“(e) Motion to Defer or Exempt from ADR.  A party may file a motion to defer an ADR conference or exempt a case from ADR for case specific reasons.  For good cause, the Chief Judge for Administrative Purposes of the circuit may grant the motion.  For example, it may be appropriate to defer an ADR conference or completely exempt a case from the requirement of ADR where a party is unable to participate due to incarceration or mental or physical condition.”

Additionally, the South Carolina Court of Appeals in Roesler v. Roesler, 396 S.C. 100, 719 S.E.2d 275 (Ct.App.2011), affirmed the right of the CAJ to have exempted that case from mandatory mediation.

I’m fully aware that ADR Rule 5(e) states that a “motion to…exempt” may be filed by the requesting attorney/party; however, because this Rule does not compel that a motion be filed, it may be entirely possible that your CAJ may entertain your written request for such an exemption; and, consequently, I’m providing your with the following form letter which might serve your purpose, and at minimal cost to your client.

[ATTORNEY’S LETTERHEAD]

Date

Honorable (name of family court judge)
Chief Family Court Judge for Administrative Purposes
Post Office Box —–
(City – SC – zip code)

Re: Jane Doe vs. John Doe
File No. 2010-DR-___-_______

Dear Judge ————–:

First of all, pursuant to Rule 5(b)(3), SCRCP, and prior to my sending this letter, I have previously consulted with the opposing counsel whose name is listed below, and (name of opposing counsel) is both aware of this contact with the court and has joined in this request.

Pursuant to ADR Rule 5(e), and in lieu of filing a motion, we are respectfully requesting that the abovecaptioned case be exempted from ADR for the following reasons, and that this case be docketed for a final hearing as soon as practicable:

Examples:

• The (plaintiff) (defendant) (both parties) meet(s) the current federal poverty guidelines and are unable to afford the cost of mediation [please see the attached affidavit(s) of the (plaintiff) (defendant) (parties) regarding (his) (her) (their) current income(s)].

• The parties and counsel have previously held good faith settlement conferences, without success, and it is the professional opinion of counsel that any mediation will not only prove to be unsuccessful, but it may even exacerbate the disputes between the parties.

• Pre-trial discovery has been completed. While the parties and counsel are prepared, in continued good faith, to engage in pre-trial conferences with the court, it is the professional opinion of counsel that mediation will not resolve the case nor result in the settlement of any of the contested issues.

• The parties and counsel have previously engaged in a pre-filing mediation which proved to be unsuccessful, and it is the professional opinion of counsel that any post-filing mediation will prove to be equally unsuccessful.

• The defendant(s) (has) (have) been served in accordance with Rule 4, SCRCP, and are in default.

With all due respect, and in an effort to save the court time, I have provided a “response from the court”, below.

Sincerely,

(Name of submitting attorney)

cc: (Name and fax number of opposing counsel)
* * * * * * * *

This case shall be exempt from ADR.    ______________

The request to exempt this case from ADR is denied.  _________________

_________________________________________________________________
Chief Family Court Judge for Administrative Purposes
Date:

 

 

 

 

 

 

How Do You Successfully Mediate Feelings

“Mediation is the art of recovery.”
(From “Family Court Mediation Training Program”)

Having practiced family law for over 40 years, I am now into my 6th year as a fulltime family court mediator and arbitrator, and I have determined that, on many levels, mediation has presented me with my greatest professional challenge. I’ll explain.

I retired from the family court bench at the end of December, 2008, and in January, 2009, I “transitioned” into my mediation practice, convinced that I had enough experience in this area immediately to become a natural-born mediator. I just knew I could settle every case by sheer force of will and experience. Wrong.

Mediation forced me – no, it required me – to become enmeshed with the feelings of the parties.

I understand all too well that the feelings of the parties who participate in the mediation process not only matter, but form the engine which drives the process forward. These feelings include (often all at the same moment in time) –

• Anger
• Bitterness
• Hurt
• Mistrust
• Frustration
• Helplessness
• Hopelessness
• Sadness
• Anxiety
• Loss
• Confusion
• Dependency

For the mediator, understanding and being constantly aware of, and attuned to, the nuances of the parties’ (and quite often their attorneys’) feelings which they bring to the mediation session are absolutely essential in lending towards a resolution of the case.

To the attorneys who are participating in the mediation let me please offer the following:

a. A mediation is not a family court hearing which is intended to be conducted (started and ended) within a finite period of time. Please don’t arrive leaving. Mediation should be a family law attorneys’ best friend.

b. I would urge every family law attorney who participates in mediation to remember these words: Mediation is a process which will have a point-of-beginning, but which will end when it is supposed to end.

c. Please give your mediator time to work with your clients to discover whether your client’s feelings continue to create a wall or barrier which prevents a reasoned and reasonable discussion affecting the resolution of his or her case. Your mediator will know, often instinctively, when it is time to try and break through this wall. In other words, cut the mediator some slack.

To the clients who are participating in the mediation:

a. You must trust your mediator to level the field for both sides. A mediator is a “neutral”…and you should both embrace and understand the significance of that term.

b. Your feelings matter to your mediator, but you also have an obligation to be both honest and candid with your mediator as to whether the feelings which you have brought to the mediation process make it impossible for you to make reasoned and reasonable compromises towards the resolution of your case.

 

A Mediation Primer 101

A MEDIATION PRIMER 101

From the “practical” to the “psychological” –
10 guaranteed ways to reduce your client’s mediation fees
and greatly increase the opportunity for a successful mediation

1. If your clients or you have any questions regarding the mediator’s fees and the mediator’s billing/invoicing practices, communicate those questions/concerns with the mediator immediately and before you engage the services of the mediator. It is important for you to realize that the Ethics Advisory Committee of the South Carolina Bar previously issued a modified opinion which stated, in pertinent part, that “…if an attorney hires a mediator, the attorney is responsible for ensuring timely payment. If the court orders a mediator, the attorneys should look to the courts for assistance in determination of how the payment will be rendered”.

2. As soon after the mediation date, time and location have been confirmed, have your administrative assistant send your mediator (by e-mail, scan, fax or mail), the following basic information:

a. The pleadings.
b. Any order which has been entered of record.
c. A completed and accurate financial declaration. It is fine to send the financial declaration which was filed for your initial hearing, unless that version is more than 6 months old (however, if all of the entries on the “old version” remain exactly the same, then advise your mediator of that fact).
d. A brief memorandum of the “relief” your client is interested in seeking at the mediation (mark it as “confidential – for mediator’s review only”).
e. Any written settlement offers which may have been exchanged with the opposing attorney.

3. Realizing how busy you are, if you have scheduled the mediation comparatively well into the future (e.g., a month or longer), please do not wait until the week before the mediation to begin forwarding the requested information. As in any case, if you treat the mediation process as “something to get through without your having to do too much work in preparation”, you’ve actually wasted your client’s money, because the “window of opportunity” for a successful outcome becomes too narrow. Just as you must prepare for a trial, you should at least give your mediator an opportunity to prepare to conduct not just a mediation session, but a successful mediation session.

4. The best mediations (and the ones which most often settle rather quickly) are those where the attorneys and their clients have come to the mediation prepared to make a firm opening settlement offer to the other side (it must be presumed this is an offer which has not already been rejected by the other side…there must be a new component to it).

5. Immediately forward to your clients any e-mails or correspondence sent you by your mediator. It cost your client nothing for you to “forward” an e-mail sent you by your mediator. Although you may not have the time (or wish to take time) to read and digest these transmissions, rest assured that your client is keenly interested in being fully informed about this process, and he or she is relying upon you to provide information and explanation about mediation. Your client does not know the mediator…your client knows you.

6. If you are truly interested in fully settling your client’s case at mediation, then you must emphasize to your clients the opportunity which a mediation (entered into in good faith) will present them. No attorney has ever questioned that a case settled in mediation is ultimately much less expensive to your client than a case which goes to trial. Consequently, and unfortunately, if you minimize to your client the important opportunity which mediation offers, then you should most probably not even bother with mediation.

7. If you know prior to the date of the mediation that your client and/or you are not prepared to settle the entire case, you must professionally and ethically make that position known to the opposing attorney and, of course, to the mediator. Do not begin a mediation session only to inform the mediator that you knew ahead of time you were not prepared to settle certain issues that day. Although, for example, settling 70% of a case at mediation may sound promising, the “unsettled issues” may ultimately undermine the entire mediation process and result in a rescission by a party or parties on even the “settled matters”. [Remember that in family court an agreement reached in mediation is never final until the family court judge (a) approves the agreement, (b) signs an order approving the agreement, and (c) the order is entered in the Clerk’s Office.]

8. During the mediation session you should not openly undermine the mediator’s conduct of the mediation. A mediator is a complete neutral in this process, and has, as his or her objective, a goal of being able to reach a full and final settlement of your case. If in your client’s presence you “challenge” the mediator’s method of conducting the session, you will bring the mediation to an immediate standstill, and impasse. (With that said, if you truly believe the mediator’s impartiality is in question, then request a private conference with the mediator and the opposing attorney only, without the clients present, and then voice your concerns openly and frankly.) You must remember that your client is relying upon you for your advice and guidance, not on the mediator. Consequently, and psychologically, once you plant in your client the perception that the mediator is no longer completely neutral, the chance for a successful mediation is remote, if not impossible.

9. Please do not trivialize a mediation session as being “less important” than the trial of a case inside a family courtroom…and do not trivialize the work of a competent mediator. It is far better – and much less expensive – for your clients and you if you request that your chief administrative family court judge (CAJ) waive mediation in your case, rather than your making only a half-hearted attempt to participate in this process. Where professionalism and professional courtesies are involved, mediators, like attorneys, have long memories.

10. And finally, you are once again urged to consider entering into a blended form of mediation/arbitration, which is gaining acceptance statewide as the ultimate form of a family law dispute resolution. Ethically, however, in agreeing to this form of ADR, your clients and you should be prepared to agree there will be no “confidential mediation” matters which might temper or impact upon the mediator’s role on the “arbitration” side of this process. Nevertheless, if your clients and you are intent on bringing a final resolution to the case, then a blended mediation/arbitration process should provide you with that excellent opportunity.