Massachusetts Divorce Mediaton Tip: Your Childrens’ Best Interests

When kids are caught in the middle of a failed marriage in Massachusetts, parents might consider trying to put aside financial differences while respectfully discussing each child’s best interests. Even when agreement can’t be reached on money matters, parents can still try to find common ground here.

As an aside, and while it’s certainly not the general rule, it’s also not unheard of for these conversations to open up a new dialog which leads to couples successfully giving their marriage another chance. More often than not, however, these efforts can lead to a thoughtful parenting plan. A mediated parenting plan is the best plan for your kids, instead of the standard generic forms or boiler plate provisions used by others who probably never even met your children (or may never had any of their own.) In the end, try to prevent convenience and expediency from becoming the ruling factors affecting your kids.

Divorce Mediation Empowering Parents and Helping Keep Kids Out of the Middle

Did you know that mediation often helps divorcing parents reach a reasoned, informed, and mutually acceptable agreement without all the costs of litigation? A quote attributed to Kimberly Emery, Assistant Dean for pro bono and public interest at University of Virginia School of Law, sums up several benefits of mediation nicely:

“Mediation really is a way to save money, keep kids out of the middle and put the power back in the hands of the parents,” Emery said. “Judges hear what they can hear in a short period, but you don’t want a third party to make those decisions for you.”

Mediation can help parents consider and find agreement on the potential impacts a divorce may have on their children. There is little downside in trying to reach an agreement through mediation. The expensive alternative to an agreement remains to fight it out in court. Of course, for some circumstances this formal adversarial approach may be necessary, but generally speaking, divorcing parents (and their children) are probably better served when contentious courtroom battles become the forum of last resort, or an arena turned to only after a good faith attempt at mediation has failed.

Mediation, Moore’s Law, and Web 3.0: Better, Faster, Cheaper …

Mediator James Melamed wrote a thoughtful post, The Mediation Industry: Our Time Has Come. His words, “better, faster and cheaper” seem to align with themes flowing through social media’s developments, like Facebook, twitter, LinkedIn, and others. His post brought to mind an interview I saw last night of Eric Schmidt, CEO of Google, by Charlie Rose. It was an interesting conversation on many fronts.

At one point during the interview, Rose and Schmidt discussed Moore’s Law and the expected exponential pace of change in computing performance (akin to the doubling of performance, or the halving of development costs, every 18 months.)  Schmidt also cited the growing number of online (and mobile phone) users internationally and suggested the internet will soon allow almost immediate translation of communications (or online material) into any other language.

With the pace of technologies growing faster than our laws to address them, and while advances are eliminating economic and geographical boundaries to our interactions, might mediation become the dispute resolution of choice in a Web 3.0 and beyond world? Time will tell, but mediation, it would appear more so than litigation, seems a natural fit with an emerging culture that’s grown up on Facebook. Beyond better, faster, and cheaper, mediation may offer collaboration and connectedness along with controlling and resolving differences. Certainly litigation will contiune to play its important role, but more mediation may square with Moore’s law in a global inteconnected world.

Sunshine Legislation and Confidential Settlement Agreements

A March 6, 2009 email alert from Justice.org states, in part:

… Senators Herb Kohl and Lindsey Graham introduced S. 537, the Sunshine in Litigation Act, a bill to restrict protective orders and secrecy agreements in Federal cases where the result of such agreements would be to withhold public health and safety information from the public.

From one perspective, this may provide potential defendants with a good reason or incentive to mediate disputes before they become a federal case. Early pre-litigation mediation or settlement may also increase the value of a plaintiff’s claim because disclosure of the case could be damaging to the defendant or the defendant’s reputation.

On the other hand, however, some critics of confidential settlements, argue the public good is not served when things are kept quiet.  This argument is made on the Justice.org website:

Victims of dangerous products are often forced to sign court secrecy agreements in order to settle product liability cases.  Negligent corporations that produce dangerous and hazardous products use court secrecy agreements to avoid accountability and hide potential public safety issues.  Court secrecy agreements have hidden the dangers of prescription drugs, hazardous toys, deadly tires and collapsing baby cribs.  And these are only the dangers that have been made public.

I assume these arguments would apply to confidential pre-litigation mediated agreements, too. Nevertheless, secrecy is an important issue for many plaintiffs and defendants. The outcome of this legislation, or legislation like it, could have a significant impact on how high stakes cases are resolved, or not resolved.

Confidential Mediator: Did You Know Secrets are Allowed in Mediation

Did you know you can talk to your mediator privately about your hidden issues and concerns (without the mediator sharing the details with the other side)?

Sometimes having a neutral mediator involved provides not only a forum for resolving your dispute, but also gives you a sounding board for how you can best go about doing it. As an attorney and a mediator, I’m comfortable keeping confidential information and only disclosing that which I can. In this regard, I find it helps if I know your hidden agenda.

Unlike some, I’m not interested in dumping everything on the bargaining table and seeing what sticks. I’d rather focus our efforts on what can be accomplished and agreed upon while, at the same time, respecting your confidences, and even your hidden interests, completely.

Mediation Dollars and Sense

Sitting in Duxbury, Massachusetts (between meetings,) I recently read a post about flexibility and value in mediation by West Virginia mediator and attorney, Keith Jones: The Beauty of Mediation: Flexibility. I like his focus on value, especially in these tough economic times.

Ironically, expanding the conversation beyond the dollars at stake is often the only way to ultimately talk dollars and cents. To maximize your opportunities for agreement, it makes good sense to explore all the interests seated around the table. Often there’s something hidden that once uncovered can make all the difference toward a successful outcome.

Openess and Transparency During Economic Conflict: What About During Mediation?

Google the and the government stimulus spending, is the box really opened?  Thanks to Nicole Black (@nikiblack on Twitter) for her tweet about this ReadWriteWeb post, Stimulus Spend Data Coming Via Feeds, on the developing use of feeds in government.

In a memo from the Office of Management and Budget last week, Director Peter Orszag outlined the implementation guidelines [PDF] for the new stimulus bill, requiring all government agencies to provide a feed to disclose funds allocated, and optimize Web pages in an effort to help the public find relevant information through search engines.

The Obama administration is getting kudos from ReadWriteWeb for their openness and transparency here. What about you?

• When it comes to the facts under your control, what does being open and transparent say about you in a mediation?
• When will it help and when will it not?
• When and how do you decide what to share?
• Is this your personal style or is this a tactic for this negotiation?
• Are you trying to control information, resolve a matter, or some combination of these?
• What are you worried about leaking that could hurt you later?
• What’s the risk and what’s the reward?

What Traits Do You Want in Your Mediator?

Traits of a ‘Mediator‘ by Sam Imperati borrows a framework related to an army field manual on Human Intelligence Collectors to discuss the following traits:

• Credibility,
• Objectivity and Self-control,
• Adaptability,
• Perseverance,
• Appearance and Demeanor, and
• Initiative.

What traits do you want in a mediator? What traits don’t you want?

Mediation can Lead to Quicker Settlements and Payments for All

The ABA Journal reports Nearly Half of Mass. Lawyers Surveyed Expect to Earn Less in 2009.

Q. One possible way to combat this?
A. Settle more cases sooner.

Earlier settlements can lead to greater client satisfaction and also help increase revenue for lawyers. In addition, mediated agreements can assist by keeping advanced costs contained. This, of course, is only a win-win when the settlement agreement is fair.

Could mediation be the antidote for some of these Massachusetts lawyers fearing a down year? Perhaps, but remember, this isn’t a prescription to start a settlement mill. It’s merely another argument in favor of exploring fair and reasonable settlements through mediation sooner. As a rule, there’s little to lose if you don’t agree on a fair settlement through mediation.

Twitter Time for this Massachusetts Mediator

I’ve just started using Twitter and I wanted to invite blog readers to let me know your username so I can follow you on twitter.  For those interested in following me, I’m at http://twitter.com/kevinwhitaker or @kevinwhitaker for twitter users. I hope to have a link, widget or something more permanent on the blog in the coming days. As this is new, I’m still looking at options and best uses. Currently I’m using/trying TweetDeck, TwitterFox, and twhirl, but would welcome any suggestions.