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Mediating Divorce Agreement James C. Melamed, J.D. © 2004 Oregon Mediation Center, Inc. All Rights Reserved

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Presentation on theme: "Mediating Divorce Agreement James C. Melamed, J.D. © 2004 Oregon Mediation Center, Inc. All Rights Reserved"— Presentation transcript:

1 Mediating Divorce Agreement James C. Melamed, J.D. © 2004 Oregon Mediation Center, Inc. All Rights Reserved

2 Mediating Divorce Agreement2 Overview of Time Together n Day One – Course Overview/Introductions/Outcomes – Continuing Themes – Conflict Resolution Theory/Skills – ADR Processes/Skills n Day Two – Negotiation Theory/Skills – Overview and Structure of Mediation – The Introductory Session – Mediating Agreement on Parenting Issues – Psychological Experience of Divorce n Day Three – Mediating Agreement on Parenting Issues (cont.) – Being a Mediator – Mediation Strategies – Communication and Facilitation Skills n Day Four – Mediating Agreement on Property/Debts – Mediating Agreement on Support Issues – Abuse and Capacity Issues n Day Five – Financial Integration and Tax Issues – Drafting the Understanding – Ethics – Building a Practice

3 Mediating Divorce Agreement3 Introductions and Desired Outcomes About You and what you would like to get out of our time together?

4 Mediating Divorce Agreement4 Continuing Themes n A Fascinating Endeavor n The Basic Equation n Truth, Perspective and Parts n Adaptive and Relative Decision-Making n Baby Steps n Strategic Mediation n Less is More n The Goal(s) of Your Mediation Services - agreement or a best opportunity to agree? - fairness - reasonableness - best interest of child? - empowerment? - recognition? - other? n What to do when you don’t know what to do Outcome Questions, Evidence Questions, Summarize, Normalize Mutualize, Suggest New Perspectives n The Internet is changing everything

5 Mediating Divorce Agreement5 Keys to Agreement n perspective (assist to be heard) n beliefs and values (work within) n interests/positive intentions (find) position interests positive intention if negative or revenge To deal with position, negative or revenge, ask: what would be accomplished in the positive if you: 1. Got your position; 2. Successfully avoided your negative or 3. Got your revenge?

6 Mediating Divorce Agreement6 Facilitating the Sharing of Perspectives Early Notice n Anticipatory Time Framing n Presume Disagreement n Semi-Active Listening n Gentle Inquiry n Summarize Golden Nuggets n Feedback n Refine Summary n Confirm Heard n Acknowledgement of Other?

7 Mediating Divorce Agreement7 More Agreement Creation Concepts n Conflict as Evolution normalize n Interpersonal and Intrapersonal parts theory for dealing with confusion n “Resolution?” A convergence of means. Parties only need to agree on what, not why n From Battle to Journey organizing metaphor n Adjudicatory Model or Myth? myths of justice, finality, rationality and objectivity n Bargaining in Shadow of the Law perceptions of the law n Other Shadows

8 Mediating Divorce Agreement8 Types of Conflict By recognizing the type of conflict you are dealing with, you have an advantage in developing an effective mediation strategy n Relational Conflict past: express one time. real well future: what are your future relational interests n Data Conflict data conflicts have data solutions n Interest-Based Conflict what we can work with maximize satisfaction of interests presented as positions n Structural (External) Conflict comrades seeking structural solutions n Value Based Conflict will not be resolved by words, only new experiences

9 Mediating Divorce Agreement9 Ways of Managing Conflict n Denial/Withdrawal n Suppression/Smoothing Over n Power/Dominance n Simple Compromise n Integrative Collaboration (enlightened self interest) assumptions: n some common interests n benefits of sharing perspectives, interests, and intentions n we face complex challenges which are best addressed through our combined intelligence and creativity

10 Mediating Divorce Agreement10 ADR Concepts/Skills An infinite spectrum of processes Commonalities and benefits: – motivated preparation – a “hearing” – capable presentation of other side – a window of opportunity Negotiation Mediation Arbitration Experiencing the ADR Processes

11 Mediating Divorce Agreement11 ADR Processes n Adjudicatory – adjudication – arbitration – court-annexed arbitration – private tribunals n Consensual – ombudsperson – fact-finding – negotiaton – mediation – conciliation n Mixed – med-rec – med-arb – mini-trial – summary jury trial

12 Mediating Divorce Agreement12 Negotiation Concepts & Skills competitive/positional and integrative/problem-solving interest-based/collaborative n not personality, but content approaches n creating and claiming value n dispute/transactional negotiation competitive approach, assumptions, risks integrative approach, assumptions, risks principled negotiation separate people/problem insist on interests generate options decide by objective criteria what if they have more power? your BATNA inducing principled negotiation (matching, pacing leading) competitive/positional and integrative/problem-solving interest-based/collaborative n not personality, but content approaches n creating and claiming value n dispute/transactional negotiation competitive approach, assumptions, risks integrative approach, assumptions, risks principled negotiation separate people/problem insist on interests generate options decide by objective criteria what if they have more power? your BATNA inducing principled negotiation (matching, pacing leading)

13 Mediating Divorce Agreement13 Negotiation Power n What is it? – relative – changes – limited – real/apparent – exercise has benefits/costs – ability to punish/benefit – enhanced by ability/resources – increased by ability to endure uncertainty – a good negotiating relationship – perceived batna – only exists if accepted n Any duty to balance power? n Concepts of competence, empowerment and maximization

14 Mediating Divorce Agreement14 Being a Mediator n Science and Art n Develop Your Toolbox n Meet Parties Where At n Balance Structure and Responsiveness n Interdisciplinary n Impartiality, Neutrality, Balance n The “Right Way” n Roles of the Mediator n Benefits of Mediation

15 Mediating Divorce Agreement15 Mediation Cultures n Comparing Divorce and Civil Mediation – Agenda setting – Use of Caucus – Overall Structure – Attorneys? – Physical Setting – Offer Recommendations? – Ex Parte Contacts n The Decision to Caucus – the price you pay – strategic, not automatic – reasons to caucus – confidentiality understandings – homework n Subject Matter Expertise and Offering an Opinion

16 Mediating Divorce Agreement16 Getting Started n A Capable Description of the Mediation Process – Define Mediation: “Assisted Negotiation” – Describe Key Qualities n Voluntary n Collaborative n Controlled n Confidential n Informed n Impartial, Neutral, Balanced, Safe n Self Responsible and Satisfying n Initial Contacts – immediate caucus – rely on descriptive materials – segregated intro meeting or phase – sample contact materials

17 Mediating Divorce Agreement17 Sample Mediator’s Opening Statement n Introductions n Prior Contacts n Define and Describe Process n Impartiality/Neutrality n Logistics n Caucus n Confidentiality n Suggested Ground Rules? n Answer Questions n Joint Commitment

18 Mediating Divorce Agreement18 Sample Introductory Session Agenda n Welcome and Introductions n Today: Introductory, Easy, Educational, Confidential n Prior Contacts n Your and Your Situation n Overview of Mediation n Fees and Costs n Attorneys and Court n Memorializing Progress n A Next Session?

19 Mediating Divorce Agreement19 Keeping it Going n Sample Suggested Ground Rules n Resolving Pressing Issues – interim – not precedental – not admissible – retroactive application of eventual resolution

20 Mediating Divorce Agreement20 Sample Working Session Agenda n Finalize Agreement to Mediate n Confirm Additional Process Agreements n Identify Desired Info/Doc n Sharing of Perspectives n Identify and Expand Easy Points of Agreement and Shared Interests n Identify Additional Respective Interests n Establish Problem Solving Statement(s) n Discuss and Negotiate Issues – Interests, Positive Intentions, Goals – Options – Selection Decisions – Integration n Draft, Refine and Implement

21 Mediating Divorce Agreement21 Communication Skills n question forms opening information gathering clarifying/specifying justifying hypothetical leading stimulating participation focusing alternate-choice closure (focus) n the outcome question n the evidence question n cumulating outcomes n the conditional close n the reference point process timetime

22 Mediating Divorce Agreement22 Rapport Development n matching n pacing n leading – infinite variables – language to use appreciating that... understanding you to feel... acknowledging that... assuming that... respecting that... accepting that... – language to avoid I think... you should... but... however... – Working with beliefs and resistance physical & substantive

23 Mediating Divorce Agreement23 Indirect Techniques n Metaphor (Journey) n Analogies within participant realities – work and play n Quotes and Speaking Through Another Voice n Normative Statements allow options to be considered n Manipulation or Maneuvering?

24 Mediating Divorce Agreement24 Remember the Common Ground n Common Interests (there are always some) Interdependence (each party holds the keys to the other getting what they want) n Easy Points of Agreement (What are all of the things that you might possibly be able to easily agree upon) E P A

25 Mediating Divorce Agreement25 Overall Problem- Solving Structure n Consent to Process the process is always negotiable n Sharing Perspectives n Remember the Common Ground n Problem-Solving Agenda mutualized, aspirational problem-to-be-solved n Desired Information/Documentation On each problem to be solved: n Interests and Positive Intentions n Options n Selections n Integration

26 Mediating Divorce Agreement26 Mediative Strategy Mediators use different strategies at different times, including the following three approaches. n Interest-Based Option Development n Hypothesis Generation and Testing n Doubt and Dissonance Interest-based problem-solving Mediator guessing Heat GOALGOAL Rapport building Information gathering Interests and options Harvest easy agreements Package Deals Based on desired outcomes, interests and principles Importance of Rationale Base on rapport Mutual and individual

27 Mediating Divorce Agreement27 Interest-Based Option Development n Interests and Positive Intentions n Options n Selections – cumulative arrangements – modular parts – easy agreements – exchanges – package deals – priorities n Integration

28 Mediating Divorce Agreement28 Hypothesis Generation and Testing Agreement by Successive Approximation n Strategic Summarization n Hypothesis Development n Hypothesis Testing n Adjust Hypothesis n Test Adjusted Hypothesis n Confirm Agreement n Integration

29 Mediating Divorce Agreement29 Doubt and Dissonance Creating a healthy tension of the mind n why create dissonance? n options n base upon rapport n assume people will make the best choice they perceive available n individualized or mutualized? n examples: – two sets of arrangements – exchange environment – hypothetical question – fact-finding – if you were in our shoes – the “parade of horribles” – the eight questions

30 Mediating Divorce Agreement30 Emotional/Relational Management Options n teflon n relevancy check n ground rules n summarization n normalization n mutualization n acknowledgement n referral little content attention more content attention

31 Mediating Divorce Agreement31 Child Suppport n Two basic ways of calculating in US: – child support guidelines – customized child support calculations n Oregon Guideline Model – gross income – potential income – basic child support obligation – regular, joint and split custody worksheets – job related child care, medical insurance and uninsured medical costs may be added in – rebuttable presumption – duration of child support n California Guideline Model – net income – number of children – percentage of parenting time – add in child care and health care costs n Tax Aspects of Child Support – non-deductible, exemptions, head of household, child care credit

32 Mediating Divorce Agreement32 Customized Calculation of Child Suppport Based on respective budgeting, calculate from each perspective, have one time “bottom line” negotiation Income HNet income: ___________________ % WNet income: ___________________ % Total net income: ______________ 100 % Budgets H personal needs: _____ W personal needs: _____ H costs children: _____W costs children: _____ total costs for children: _____ total personal needs: _____ H obligation for children =H % net income x total costs for children W obligation for children =W% net income x total costs for children Child Support = H total obligation - H costs for children; or W total obligation - W costs for children

33 Mediating Divorce Agreement33 Spousal Support n lightening rod issue n legal standard n “comparable suffering” standard n characterize type of support (transitional, ongoing, compensatory?) n understand purposes and goals of support n amount determination n duration determination n assumptions underlying support n triggers and non-triggers n charting spousal support n payment of excess support n insuring the support obligation n temporary support n tax deductibility

34 Mediating Divorce Agreement34 Customized Calculation of Spousal Support 1.Calculate any shortfall or excess: Combined net income:____________ Less total costs for children:____________ Amount left for parents:____________ Less total parents' needs:____________ Amount of "shortfall" or excess: ______ x 1/2 = ______ each party's share of shortfall or excess 2.Calculate support "entitlement" and support needed R to receive: R’s personal needs: __________ +/- shortfall/excess:__________ total “entitlement”__________ R has: R's net income:__________ Less R's oblig. for children:__________ Amount R has left:__________ R’s "entitlement" =__________ Less amount R has to meet =__________ Net spousal support needed =__________ 3.Augment basic entitlement with resulting tax liability. e.g., if net spousal support needed = $1,000, tax liability might be 15% federal, 7% state, with resulting spousal support of 22% additional or $1, Consider Sharing net tax savings Consider augmenting spousal support by 1/2 tax savings. e.g., if husband's tax rate is 28% federal and 9% state, H tax rate = 37%; Wife's taxes are15% of federal, 7% of state, W tax rate = 22%. The difference is 15%, which divided in half - 7.5%, so wife's total support = $1,220 + ($1,220 x 7.5%) = $1,

35 Mediating Divorce Agreement35 Property & Debt Division n legal context – equity states (marital/individual) – community property states (community/separate) n 5 step approach – disclose – characterize – value – determine reimbursements – divide n quantity and quality considerations n identify desired outcomes and criteria n values and valuation dates n personal property – inventory – value – higher value gets – auction if both want at that price n the marital home n IRAs, 401K’s and pensions n bringing the parties together money judgments and division of proceeds on the sale of real property n charting property and debt division

36 Mediating Divorce Agreement36 Issue Spotting Tax Issues n Divorce itself not a taxable event n tax filing status generally - joint/individual n head of household filing status n child care credit n exemptions for children n child support n spousal support n temporary spousal support n property division generally n marital home capital gains exposure n mortgage interest and property taxes n past tax liability

37 Mediating Divorce Agreement37 Drafting the Agreement n Getting the job capably done n Work product alternatives – “Memorandum of Understanding” – Marital Settlement Agreement – Stipulated Modification of Decree – Informal Agreements n Avoiding the unauthorized practice of law n Legal Advice and Review n Rely on outside attorneys to draft? n Co-Mediation / Partnering

38 Mediating Divorce Agreement38 Appropriateness for Mediation n private sector/public sector n some measure of screening - capacity n domestic violence screening n standards – reasonably able to represent interests – make reasonably informed decisions – free from intimidation or coercion n voluntary process and agreements n when in doubt, act on concerns n how can mediation be configured to create capacity for both parties? n reporting abuse, or not

39 Mediating Divorce Agreement39 Mediation Ethics n Which standards apply? profession of origin, state mediation association, ACR/ABA/AAA, AFCC n For what purpose? aspirational, minimal, liability measure n Informed Consent n Self-Determination n Voluntary n Rights to be Informed, Disclosure? n Impartiality, Neutrality n Prior Contacts n Prior Professional Service n Subsequent Professional Services n Substantive Bias n Confidentiality n Caucus n Fees

40 Mediating Divorce Agreement40 Mediation Ethics (cont) n Define and Describe Process n Encourage Legal Counsel, Advise Legal Review n Legal Advice and Legal Information n Capacity n Balance Power? n Fairness or Reasonableness? n Drafting n Unauthorized Practice of Law n Court Appearance? n Pleadings? Motions? Stipulated Orders, Judgments and Decrees n Co-Mediation – Attorney with other n Advertising

41 Mediating Divorce Agreement41 Theoretic Model n Desired Outcomes n Interests n Positive Intentions Give Direction to Agreement n Intrinsic Attraction to Agreement n De-positioning n New Perspectives n Doubt and Dissonance Create Flexibility and Willingness to Move to Agreement n Principles n Standards n Criteria n Rationales n Rationalizations Provide an Explanation (Rationale) that Makes Agreeing Safe and Adaptive

42 Mediating Divorce Agreement42 Developing a Practice n Don’t Quit Your Day Job Yet n Niche n Plan n Existing Networks n New Networks n Stationary n Yellow Pages n The Internet n Display Ads n Press Releases n Articles n Presentations n Mailings with Qualifiers n Qualify for Panels n Additional Professional Education


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