Taking Ownership of Your Divorce

When I mediate, I am working to help divorcing couples to find a solution that will create the best future for both of them and their children, or at least, to minimize and share the pain equitably. I also work as an attorney at www.strichlaw.com, representing clients in “traditional” divorces. I would love to do only mediation, but as it is I get to see the best and worst of both worlds. I was recently involved in a matrimonial trial.

Now when couples are mediating and they reach what feels like a deadlock, they sometimes say, “we’ll just let the judge decide it.” The first and most obvious problem with that is that there will be no judge deciding until many months and most likely many thousands, or tens of thousands, of dollars later. The other problem which may not be as obvious, but is perhaps even worse than the wasted time and money, is that when the judge hands down a decision, neither party really has ownership of the decision. The decision may go mostly one person’s way, but that person still didn’t get the experience of crafting the compromise, trying on different possibilities, being part of the decision making process. The other person will feel discounted and trampled. Neither will feel that the solution is theirs.

Mediation is not going to involve anyone “winning” and getting their own way, but I work very hard to assure that both feel fully involved in the process, and both have thought through all the possible repercussions of their settlement, and are choosing it as a better alternative. It may not be win-win, but no one loses. Experience shows that couples who mediate are less likely to end up in court in the future, making motions to modify support, or arguing over interpretations of their settlement agreement. Because they both have ownership of the compromise that was reached, they are more likely to feel able to abide by it, and try to make it work, in the future.

When you are going through the pain of a divorce, you most likely want it over, as soon as can be, to end the pain. If you take the time now to create an agreement you can take ownership of, you’ll be more likely to avoid years of pain in the future.

- Megan Oltman

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Mediated Pre-Nuptial Agreements

I got a call today from a couple about to marry who want a pre-nuptial agreement. Mediation is a great way to go about drafting a pre-nup, because it’s about the two of you working together to design the way you want your marriage to go. What’s most common, though, it to seek a pre-nup when one or both have been married before, or later in life when one or both have acquired a lot of property. There may be children from the previous marriage whose inheritance rights you want to protect, or there may be significant pre-marital property which you want to be sure will still belong to you – just in case. Since this is about both people agreeing to preserve certain rights for themselves and each other, mediation is the best way to go about it, rather than setting up an adversarial process.

Today’s call was a bit unusual because the couple seeking the pre-nup is relatively young, and neither has been married before. Unusual, but a healthy idea. Every good relationship needs clear boundaries, and a pre-nup can help set up the boundaries of the relationship. Marriage is the most complex and significant legal contract that most people are likely to enter into in their lives, and they so often enter into it without choosing or even knowing its terms! A pre-nup is an opportunity to craft your marriage the way you want it.

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Mediating vs. Litigating – Lessons from the Frontlines

One of the interesting things I see from handling divorces both as a mediator, (a neutral facilitator) and at other times as an attorney (representing one spouse or the other), is how similar the ultimate results tend to be. How could that be?

The simple truth is that most of the time, the issues in a divorce are not that complicated. The range of possible outcomes is not that broad. There are assets to be divided; if someone has been out of the workforce or economically disadvantaged there is an amount of spousal support to be decided; if there are children there must be decisions about how much time they spend with each parent and how they will be supported.

Except when a case presents unique legal questions, what complicates things is not the issues involved but the emotion of the parties. There is a world of stress, pain and hurt that divorcing couples are living in during the process. Those emotions need to be put aside, or dealt with by trained therapists and counselors, in order to come up with a solution to divorce issues that both parties can live with. It’s when one or both parties are acting out their anger and hurt by holding unreasonable positions, that divorce gets ugly, the process drags on, and the costs of the divorce mount.

At the end, if a judge has to decide the issues, the resolution will most likely be fairly predictable. Division of assets right down the middle. Support to an economically disadvantaged spouse. child support according to the guidelines. Children’s contact with both parents maximized.

I’m not saying your life, your family, your situation is not unique. Of course they are. That’s why mediation, crafting your own solution and your own future that everyone can live with, is the better solution.

Hey, I’m an attorney too. If you want to pay legal fees enough to help send my kids to college, I won’t stop you. But if you’d rather make sure you have enough to send your own kids to college, you’d really be better off mediating.

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Family Law Trends

I am a family law mediator, and I also practice family law as an attorney. This means that when a couple is divorcing, I can either act as a neutral, facilitating the couple’s agreement on how to settle the issues between them, or I can act as an advocate for one side or the other. Today I represented a client in a meeting with the Matrimonial Early Settlement Panel (MESP). In the New Jersey Family Courts, if parties do not settle a case by a certain time in the process, they are required to attend MESP where two experienced family law practitioners review the case and make recommendations as to how to settle the case.

Although the MESP has been around for several decades already, I still view it as part of the newer trend in Family Law, a trend to encourage settlement, collaboration, and mediation where possible. In New Jersey the courts are squarely behind this trend. If the parties don’t settle at MESP or shortly thereafter, MESP is followed within 30 days by Economic Mediation.

It may be to family law attorneys’ advantage to keep a couple fighting, but it is rarely to the parties’ advantage. When cases are voluntarily settled, there is more ownership of the results, repeat trips to Court in the future are less likely, and people have a chance to move on with their lives. The cost is usually considerably less than if two attorneys are being paid throughout the process. I have no problem with making money, but I’d rather have happy clients who refer me business than clients who are broke and miserable at the end of the process.
Today I got to see the value of the unbiased opinion of the MESP panelists to help a party see reason, an outcome I didn’t expect at the beginning of the day. What works even better is when parties start out in mediation and resolve their issues together.

- Megan Oltman

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