The Success of Divorce Mediation Depends on Several Important Factors

For couples in the process of getting divorced, mediation is often promoted as the preferred method to save time, money, and reach the least acrimonious resolutions to disputes. However, the effectiveness of mediation hinges on several important factors that, when not present, can make the proceeding a complete waste of time and prolong a process that is stressful under any circumstance.

The process of mediation involves a third party, neutral facilitator who assists disputing parties solve their own conflict.

Under certain circumstances, mediation is not an appropriate conflict resolution process.

For couples with a history of violence, spousal abuse, child abuse, significant power imbalances, or one party is not willing or competent to participate, mediation is not recommended since the process can aggravate subordination. Minnesota Statute 518.619, subd. 2 provides an example of how these exceptions are embedded in mediation laws.

In these instances, attorneys and the court system can work to ensure a fair and equitable resolution for both parties.

Participants need to be properly prepared to engage in the mediation process.

An article by Justin Terch published in the February 2012 issue of Bench&Bar argues that the effectiveness of mediation often depends on how well participants are prepared. He explains that participants should know up front what is nonnegotiable, for example a parent who will refuse to accept anything less than 50 percent parenting time or a custodial parent who wants to remain in the marital home.

Mediating parties should also have a good idea of areas on which they are willing to compromise. For instance, if it doesn’t really matter if one keeps the downstairs furniture or not or which weeknight ends up being parenting time for the other parent. Terch says that when parties clarify these areas ahead of time, it results in more productive negotiations and more successful resolutions.

At Tentinger Law Firm, we advise clients to consider their goals in the following areas:

          →      Parenting time and what the ideal schedule will look like

          →     Parenting logistics: attending child activities, child health care, holidays,
                   vacation, child’s college, etc.

          →     What assets are involved and how should they be divided

          →     Any assets that are considered to be nonmarital

          →     Monthly expenses versus monthly income

 When divorcing couples come to mediation fully prepared to answer the above questions, they are more likely to reach an outcome they can live with.

The Mediator needs to be prepared with the information relevant to your case.

The issues that need to be resolved are different for every case and depend on the circumstances of the parties. For example, in order for a Mediator to assist parties in the division of assets, the Mediator needs to have an accurate accounting of what those assets are. The mediator needs to know the details of each party’s employment and salary, what each party’s monthly budget looks like, the value of any property owned, total debt owed, whether there are retirement funds, pension plans, life insurance policies. The list can be extensive and the best way to gather all the necessary information is through the process of Discovery.

Legal Discovery is a category of procedural devices that require a party to disclose information that is essential for the preparation of the requesting party’s case and that the other party alone knows or possesses.

Hiring an attorney to conduct formal Discovery can ensure that all the facts of an issue are presented, resulting in more equitable resolutions. In a recent divorce case, it was revealed that one party had taken $52,000 from an account and had given it to a friend to keep until after the divorce. This information was brought to light only after formal Discovery was served upon the spouse to produce all bank account records.

The Mediator needs to be a skilled communicator and well versed in family law.
It is the Mediator’s job to inform participants as to how the process works and what the Mediator’s role will be. One of the reasons mediation can reduce divorce litigation is that the parties retain control over the dispute and its outcome. Mediation emphasizes communication, collaboration, and problem solving, but lack of these skills is often part of what has brought couples to mediation in the first place. So, it is up to the Mediator to referee the process and ensure fairness to both parties. An effective Mediator will engage in the following techniques:

þ        Recognize quickly if one or both parties is unwilling to compromise and therefore  

        mediation would be an ineffective resolution process.

þ       Set an issue agenda and keep the process on track.

þ        Reframe issues of conflict into solvable problems (refocusing “you never pick up the
        kids on time when it’s your weekend” into what is a workable drop off and pick
        up schedule that will work for both parties).

þ        Facilitate brainstorming, the development of options, and possible alternatives.

þ        Maintain participants’ focus on the problems and not who’s right or wrong.

þ         Reinforce points of agreement and document agreements that are reached.

þ         Provide a reality check for nonnegotiable issues that are not realistic. A skilled Mediator
         should be able to advise participants if the court would be likely to grant spousal
         maintenance, grant sole physical child custody, or allow a party to keep the marital home
         AND the 401K.

Attorney representation during mediation can make the process more effective.

The issue of being able to provide a reality check for divorce demands is important as it can end an impasse or save a mediation from being unsuccessful. Having an attorney present during the mediation process can ensure that both parties understand how to calculate the appropriate level of child support that might be applicable or whether spousal maintenance would be an issue. An attorney can advise on current child custody laws and how the Court will likely approach property or asset division.

Parties considering mediation for their marriage dissolution who chose to forgo attorney representation should at the very least determine if a prospective mediator is skilled in the areas discussed in this blog.

Attorney Jay Tentinger is an experienced family law attorney who can assist in finding a skilled mediator and prepare clients for the mediation process, including the use of Discovery.

New Bill Would Require Mediation to Help Parents Determine Child Custody Disputes

Under current Minnesota law, child custody in a marriage dissolution is awarded based on the “best interests of the child.” The first criteria listed under the law to determine what is in the “best interests” of the child is the wishes of the child(ren)’s parents regarding child custody.

When the parents cannot agree, it can tie up the Court’s time and be costly for the parties involved. A new law would require parties in a marriage dissolution in which child custody will be determined to attend two hours of mediation to develop a parenting plan. This law has the potential to make the child custody process much easier and less costly for the parties involved as mediation is often less costly than going through the Court.

The law allows for exceptions when mediation is not affordable or in cases of domestic or child abuse. If the Court does not relieve the parties from the requirement, parties must complete the mediation and provide verification no later than 30 days from the date of filing the dissolution petition.

Several Websites offer worksheets to help parents in the creation of a workable parenting plan. Once a parenting plan agreement has been reached, an online parenting plan time manager, such as Our Family Wizard, can help reduce some of the shared parenting time disputes that often arise.

Parenting Plan Sample Worksheet

Court Pamphlet on Parenting Time revised in 2001

Auto Accident Phone Apps Not a Substitute for Sound Legal Advice

As a paralegal working for a law firm that handles personal injury cases, I keep my eye out for legal tools that can help our clients. Recently, I’ve noticed the proliferation of “crash apps” that can be downloaded to your  iPhone, iPad, iPod touch or Android phone and immediately accessed in the event of a car accident. These crash apps are being offered by most major auto insurance companies as well as some personal injury attorneys. I am of an age that I approach new technology with this question in mind: will it make my life easier or harder? If you are like me, you might be asking,

“Would having an auto accident app be useful to me?”

Auto accident or “crash apps” specifically address what to do if you’ve been in an auto accident. A popular example is the iWrecked app. While these apps will vary in design depending on who is offering them, they all will list steps to take after an accident to help you gather information. They will allow you to request a tow, record photos of the accident scene, prompt you to document witnesses’ contact information, store vehicle information, insurance policy numbers, and contact your insurance agent to report the accident.

 BENEFITS

Auto apps are being offered by most auto insurers, such as State Farm, Allstate, Geico, Progressive and AAA, but increasingly these apps are also being offered by personal injury attorneys. The information sought and provided by insurance apps differs slightly from that of the personal injury attorney. While both types will assist you in recording accident details, lawyer apps will list your legal rights and steps to take to protect those rights. There will usually be an icon to contact your attorney and a step-by-step tutorial on completing auto insurance claims and documenting injuries.

The ultimate goal of the auto insurer in providing these apps is to assist the insured in completing accurate accident claims, but it is also cost containment for the company. The goal of personal injury attorneys is to assist the potential client in gathering necessary evidence to protect their legal rights.

DRAWBACKS

So accident apps do have the potential to make life easier during an auto accident, but there are also drawbacks. The user must be aware that just as sharing information on the internet can result in unwanted parties collecting your data, this can also be the result of sharing information through your phone app. Most accident apps allow you to file accident claims through your mobile device. Always find out if advertisers or other agencies are collecting data from the app and, if so, how it will be used.

Additionally, a phone app is only useful if you can use it. A friend of mine was involved in a car accident in which her phone flew to the floor of her vehicle in a place where car damage made it irretrievable at the accident scene. If she had meant to rely on a phone app to help her after the accident, she would have been out of luck. Some apps allow you to locate the scene of the accident using the phone’s GPS tracking system. However, if your phone isn’t receiving a signal, you’ll have to collect the information the old fashioned way.

Furthermore, during my research on the topic, one app user commented that he had inserted insurance and contact information for the other driver involved in the accident but did not properly save it and all the data was deleted from his phone. Make sure you know exactly how to use the phone app and most importantly how to save and send information before you rely on it to save important information.

Jay Tentinger, the attorney I work for, would tell you that having some basic knowledge of what to do and what your rights are in the event of an accident is necessary whether you have an accident phone app or not. Here is what he would advise.

Steps to follow BEFORE you ever have an auto accident:

1.         Print this article and keep it in your car. Use it as a checklist.

2.         Keep your insurance card handy.

3.         Jot down the number for one or two preferred tow companies if you aren’t a AAA member. Program them in your cell and/or keep them in your wallet.

4.         Jot down the number for one or two preferred personal injury attorneys. Program them in your cell and/or keep them in your wallet. Jay Tentinger’s number is 651-287-9815.

5.         Store a disposable camera in your car. Cell phones don’t always take the best photos and it’s a good backup.

 Steps to follow AFTER you are involved in an auto accident:

1.         Call 911 even if no one is hurt. This seems simple, but people don’t always call the police. Sometimes they think if they don’t see the other party injured or see damage to the car, then they can skip the police. However, sometimes injuries can take a day or two to present symptoms. Furthermore, it becomes hard to prove the details of what occurred if there is no police report. Do not leave the scene of the accident before police arrive.

2.         If you have your phone accessible and it is capable, take photos/video footage of accident scene, voice record conversations of witnesses or involved parties. Otherwise, use the disposable camera you keep in your car.

3.         Document the exact intersection/roads where the accident occurred. Document the existence of traffic signs, street lights, position of turn arrows, weather and road conditions, time of day, obstructions, construction, witnesses, number of vehicles, speed limit on roads, speeds of all vehicles involved.

4.         Collect contact and insurance information for all parties involved in the accident, types of vehicles, damage done to each vehicle, draw a diagram of where each car was situated at time of accident. Gather names and contact information for all witnesses.

5.         Collect a business card from responding officers and emergency crew. If they don’t have a business card, get their names or badge number.

6.         Cooperate with police but consult a personal injury attorney before accepting responsibility for the accident. Tentinger Law Firm phone: 651-287-9815.

Continuing steps to follow after an accident has occurred:

1.         Obtain a copy of the police report regarding your accident.

2.         Note any work lost as a result of the accident either from feeling too poorly or from seeking medical attention.

3.         Keep receipts for any medical bills, prescriptions, or other costs related to the motor vehicle accident.

4.         Document how your injuries affect your day-to-day functioning, any physical restrictions that result, and the progress of your recovery.

5.         Never give statements to an auto insurance claims adjuster or sign any releases without first consulting an attorney. Tentinger Law Firm phone: 651-287-9815.

Remember that filing an accident claim with your phone app does not take the place of filing an accident report with police nor does it substitute for good legal advice from an attorney.

Jay A. Tentinger

1380 Corporate Center Curve, Suite 318

Eagan, MN 55121

Phone:  651-287-9815  Fax: 651-287-9816

http://www.tentingerlawfirm.com/

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