Wednesday, January 30, 2008

A Mediation Conversation


01/30/08 BY Terry Bankert [trb]


[OOSL2] Terry, is this mediation you speak of meant to take the place of the old "settlement conference" where lawyers and clients would meet to hash out their differences and reduce to writing a property settlement for a "stipulated" judgment of divorce or stipulation and property settlement to be attached to the judgment?

[trb] The Courts are moving towards increasing the use of mediation to resolve the emotional issues of divorce and allow court time ,which is short in supply, for that 5% of the cases that are tried.

The judges in reality are using the tools of mediation themselves to resolve the problem of too little time and too many cases. When the parties come to mediation they are ending a relationship with all the bitterness, frustration, disappointment and anger the loss entails. In addition they have a low level of trust in each other.

The adversarial process can increase this emotional bitterness .When parties have children they will be in contact or proximity until the children are adults. Mediation is a process in which an impartial 3rd person facilitates communication and negotiation and promotes voluntary decision making by the parties to the dispute.

The common practice in Genesee County is for the attorneys to be available but not necessarily present. Mediation is based on the principal of self determination by the participants .

The starting point for 50% of the Divorces in Genesee County is each party thinks their position is right and the others is wrong. Child Custody, parenting time and support are emotional issues not easily solved by a mathematical approach or adversarial approach. Mediation is a process of fairly balancing power in a non coercive way to achieve accommodation and result in agreement.

The attorneys through the adversarial process are focused on the disagreement. The mediation process will begin with a focus on the agreements or common ground.Then to the reasons for the disagreements and discovering new common ground. When our married lives are unwound through the divorce process the emotions of the breaking up process find their way into the pleading, hearing and personal interactions of the husband and wife.

Mediation offers the opportunity to ventilate and move parties to be agreement ready. Where there are difference the Why is explored with focus on the underlying interests and options on how to achieve those interests. The parties are then in a balanced way put in an environment where they can move to yes or agreement and resolve their own problems .

The parties are in control of their divorce not victimized by the process. The image of a 4 way at the table ,parties and counsel negotiating a settlement does not occur until a trial date where all are obligated to appear and be ready for trial.

Most trial dates have 4-6 cases ordered to be ready for trial. Since only one at a time can go plus there may be emergency hearings or carry overs from a prior day the probability of having a trial on your first trial date is only 10% , on your 2nd trial date 50% + and 90% on your third trial date. The judge usually will direct the parties to attempt to settle in the hall ways and report back before being released.

The parties will feel maximum pressure, loss of control and often a sense of victimization by the system. The Practice of mediation in Genesee County is usually towards the end where the attorneys have completed discover and staked out positions by brief. Most cases will have already had a court settlement conference with the judge where a judge indicated the likely conclusion at trial on facts presented by counsel.

In Judge [N] court there is early mediation by the Community Dispute Center that takes place on the motion morning to help resolve issues of child custody, child support, parenting time until there can be a trial, 6 months away. Stipulated or consent judgements are already 95% of the cases, mediation offers a different pathway to get there

[00SL2]Do you see the divorce meditations being any more productive than just discussing settlement and resolving differences through respective counsel?

[trb] Yes! Mediation is a positive addition to the role of counsel. Divorce and its included decisions of custody support and property division is an emotional process. In this adversarial process the attorneys stake out client positions with authority for minor modification. The farther from the trial date the more entrenched the positions.

When neither party is prepared to accept the others position a third way is needed. The options are early on in the [N] court for mediation, in [W,B,T] for a FOC referee to give the parties a brief hearing and make a recommendation which often is an order even if objected until a later,30 days, hearing/trial, can be scheduled.

Judge [G] will attempt to resolve in open court often delaying to another day and directing the parties to negotiate. Meditations serves various purposes, including the opportunity of the parties to define interests, explore and assess possible solutions and reach mutually satisfactory agreements when desired. The parties are in control of the process and divorce with dignity. The process is private, quicker, its reduces long term conflict, saves money and is better for the children.

The solutions are party generated agreements on coerced. Success in mediation is not measured by resolving all the issues. It is measured by putting the parties in control and preparing both to be agreement ready. Attorneys regularly use the mediation process to resolve the emotional conflicts between the parties usually concerning children and support.

The economic issues can be resolved through mediation but most often once the parties emotional conflicts are mediated the dollar and cents final resolution is completed by the attorneys.

Posted here by Terry Bankert 1/30/08

Tuesday, January 29, 2008

Divorce with Dignity

Divorce with Dignity. Mediation allows privacy, fairness and respect!

By Terry Bankert 01/29/08 First Posted to Flint Talk [posted also to Google blog Good Morning Flint, Flint Citizen,Craigs list,Face Book and My Space, feel free to repost]

Last week I began and completed a 40 hr hands on mediation training. there are 2 small steps to go and I will qualify for court ordered mediation.

My objective is to grow family and community dispute mediation as a significant portion of my law practice and community involvement. So yes the following does look a little like advertising. I believe if you talk the talk you must walk the walk. Mediation is the foundation for the new kinder gentler, fairer Terry Bankert. Stay tuned. So let me begin.

To legally dissolve a marriage, a lawsuit must be filed, but it is no longer necessary to follow the traditional path of litigation to work out the terms of the divorce. Today many couples are turning to mediation to resolve their disputes and negotiate the terms of their divorce. I have been involved in community mediation since 1987 during my stewardship of the Flint Ombudsman office. Mediation builds for the future not tear down because of the past.

Mediation is a process in which an impartial third-party mediator facilitates the resolution of a dispute by promoting voluntary agreement by the parties. The mediator facilitates communications, promotes understanding, focuses the parties on their interests, and seeks creative problem solving to enable the parties to reach their own agreement.

The mediators can guide you to settlement, prepare the paper work , start to finish, allowing your family to walk with dignity as its members embark on new paths. Goals of Divorce Mediation Whether divorce mediation is agreed to voluntarily by the parties, or is court-referred, the goals of the divorce mediation process are to: Create an equitable, legally sound, and mutually acceptable divorce agreement; Avoid the expense and trauma that often accompany litigation; and Minimize hostility and post-dissolution controversy.

Why Divorce Mediation? As the number of divorces has increased, divorcing couples have frequently become frustrated with the humiliation ,excessive costs and delays associated with an overburdened, adversarial litigation system, and have sought ways to play a greater role in determining the details of their divorces. Likewise, the court system has recognized the importance of developing methods of handling disputes outside of the courtroom, and so court-related mediation programs have increased in popularity around the country.

Today, mediation, either voluntary or court mandated, is the predominant form of alternative dispute resolution for divorcing couples. Divorce Mediation: Advantages Mediation is a forum in which a neutral mediator facilitates communication between parties to promote reconciliation, understanding, and settlement. Mediation is particularly suited to divorces and other family law proceedings because there is likely to be a continuing relationship between the parties, especially if minor children are involved. Many divorcing couples find mediation allows them to avoid the high financial and emotional costs of a litigated divorce.

Because settlement is generally quicker, costs are reduced. Mediation also allows couples to avoid the risks of trial, protects confidentiality, and decreases stressful conflict. Mediation may also protect the children of a marriage from the pain of parental conflict. Because the parties work to create their own agreements, couples who mediate their divorce settlement often find greater satisfaction than those who go to trial. Moreover, the couples learn skills to help them resolve future conflicts.

The Divorce Mediation Process Mediation preparation is often limited, as there is no formal discovery. Frequently, mediation begins with a "general caucus" where the parties and the mediator meet in the same room. The mediator establishes the ground rules in an "agreement to mediate." In court-mandated mediation, the court order will often contain or refer to the "rules of mediation." One of the most important mediation rules is the requirement for confidentiality. Typically, all matters disclosed or occurring during mediation, and any record made during the procedure, are confidential and generally may not be disclosed to anyone unless the parties agree to the disclosure.

The parties in a mediation are not required to reach an agreement, and sometimes they do not. Whether the case settles or reaches an impasse, the mediator usually meets with the parties together at the end of the session. If the case has neither settled nor reached an impasse, the mediator will likely encourage the parties to attend another mediation session.

If the case does settle, the mediator will urge the parties to sign a settlement to memorialize the agreement. Generally, there is no record of the mediation session, and the only document produced is the settlement (or mediation) agreement.

My office will prepare all documents necessary to cause entry of your court judgement of divorce.

If settlement is not reached the parties may decide to litigate.

If you would like to explore the mediation process and Divorce with Dignity both of your are invited to call for an appointment.

The first meeting can be in my office , your church or another neutral setting you decide on. Terry Bankert P.C. 235-1970 or through