10 Hours in Mediation?

Last Thursday, I spent 10 hours in mediation with a client. We came prepared to settle the matter, but it took until afternoon for the other side to even give us the "number" they were seeking. At the end of the day, no resolution occurred, primarily because everyone was too tired to spend the time reviewing the Marital Settlement Agreement. Sometimes parties choose the wrong attorney to represent them. Other attorneys are stuck working to educate the client when their attorney sets up unreasonable expectations.

In thinking about this, I came across the following article I wrote more than 8 years ago.

Ring That Bell

There are many ways to ring a bell. The large Wheel in the background is attached to a one-inch rope passing from the steeple of the First Baptist Church in America to the Music Director's office. Pulling the rope rotates the bell to strike the large "ball clapper." In this manner the bell rotates and the clapper is relatively stationary. The use of a one inch rope, indicates the weight of the bell and the potential momentum imparted to the person pulling on the rope.

The steeple also has a clock. The clock has a mechanism to ring the bell on the hour and 1/2 hour by use of the "hammer or "alternate clapper." The clock mechanism can't produce the force necessary to move the entire bell, thus the use of a much lighter hammer.

The hammer also attaches to a much smaller rope passing from the steeple to the interior of the church. Pulling the much smaller rope rings the bell, but the bell remains relatively stationary.

All this to say there are many ways to ring a bell.

There are also many ways to pursue your legal rememdy. Choosing an attorney who understands the differences between Litigation and Mediation, between Fighting it Out and Working it Out, can mean the difference between years of litigation and moving on with your life.

Posted by Aubreyslaw at Tuesday, August 04, 2009 No comments: Links to this post   

Is Collaborative Divorce Better than Mediation?

Collaborative divorce and mediation are two forms of alternative dispute resolution (ADR) that divorcing couples can use to complete the divorce process. One is not inherently “better” than the other, but one can be a better fit for your divorce. Which type of ADR is better for your divorce depends on your relationship with your spouse and the unique details of your marriage.

 Go into the divorce process with an open mind and do your research about your options. Work with your spouse to determine which divorce method is best for you – if you choose collaborative divorce, you will need to work cooperatively with him or her. You can determine if this is possible by seeing how well you can work together to determine the right divorce method for yourselves.

 How Mediation and Collaborative Divorce are Different

 Mediation and collaborative divorce both take place outside the courtroom. With both types of ADR, the divorcing couple maintains a high amount of control over their divorce.

 There are differences between the two, though. The primary difference between collaborative divorce and mediation is the absence of a mediator in a collaborative divorce. A mediator is a neutral third party who guides the divorcing couple toward their settlement, whereas with a collaborative divorce, the couple handles this process with their lawyers.

It Could be Better for your Divorce

 Whether collaborative divorce is better for your divorce than mediation depends largely on your ability to work cooperatively with your spouse. Although both divorce methods are less adversarial than a courtroom divorce, having a mediator present can lessen any lingering tension between a couple whereas in a collaborative divorce session, tension can leak into the couple’s interactions.

Whether collaborative divorce or mediation is better does not just depend on your personalities. Your level of knowledge about the divorce process can also determine whether you are better suited for one or the other. A mediator can explain each part of your settlement and how agreements are reached. He or she is a guide to divorce, whereas with a collaborative divorce, you and your spouse guide yourselves. Of course, you have a divorce lawyer no matter which type of divorce you choose, and your lawyer can answer any questions you have and provide you with the advice you need. But a mediator is an additional layer of professional advice and guidance, guidance that is meant to empower you and your spouse to make productive, fair choices about your divorce settlement.

 Work with an Experienced Winter Park Divorce Lawyer

 If you are considering a collaborative divorce, work with a divorce lawyer in Winter Park who has specific experience facilitating this type of divorce. Contact The Law Offices of Aubrey Harry Ducker, Jr., PLLC today to set up your initial consultation with Mr. Ducker. During your consultation, you can discuss your specific divorce concerns with him and have all your questions answered so you can move forward with your divorce as an informed participant.

 https://www.law.cornell.edu/wex/alternative_dispute_resolution

The Birds and Bees of Marriage and Divorce

    You know Bees only attend one Queen. They are from birth set out to serve their Queen and only when a new queen is birthed in the hive does the hive divorce into "old Queen," in the current hive, and "New Queen" hives destined to seek out a hive with her new workers and drones. There is no "hive intermingling" so to speak.

   Likewise, birds can be fairly monogamous, although some are quite prone to wanderlust. Certain birds are quite adept at philandering between as many partners as possible. Take Hummingbirds for instance, "Speedy hummingbirds, eating on the run and flitting from mate to mate, are prone to heart attacks," says Noah Strycker in his new book The Thing With Feathers, reviewed in a New York Times Article yesterday. Also in the review is Bernd Heinrich's The Homing Instinct. What do these books tell us about Marriage and Divorce? http://www.nytimes.com/2014/08/10/books/review/the-thing-with-feathers-and-the-homing-instinct.html?_r=0

     Homing instincts are critical to birds navigation around the globe. Most interesting is the description of the Albatross which spends most of its life soaring over the vast open oceans, but is fairly monogamous throughout life. The Albatross uses a dance ritual, learned from years of "courting" that is "as unique as human fingerprints" to each Albatross couple.

     Sunday's magazine of the NYT included a wonderful article detailing Human interaction in relationship and the correlations of education to stability. http://www.nytimes.com/2014/07/27/opinion/sunday/the-new-instability.html
Comparison over many years would lead most to believe that since the Equal Rights Revolution in the 60's and 70's divorce has actually become less common among more highly educated men and women. Obviously, changing societal norms have a great impact, as do attitudes. Just watch an episode of Mad Men to see how far we have come.

     If partners to a marriage spent comparative times apart as Albatross couples, and focused their times together on dancing in sync, perhaps divorce would not be common. But human relationships are much trickier than Albatross' interactions.

    Couples undergoing Collaborative Divorce, or Conscious Uncoupling as it is beginning to be known, report significantly improved communications. Probably communications improvements result from the use of a Neutral Facilitator who is trained in interpersonal communication. Perhaps just seeing a clear path to the finalization of the divorce helps. In any case, using a logical, step by step approach to divorce creates numerous benefits over Litigation.

    Collaboration also produces much more fair results than are sometimes obtained through Mediation alone. In Mediation, the parties may not be represented by attorneys and therefore may not have legal advice as to the fairness of anticipated settlements.

    In Collaborative Divorce, each side has an attorney to advice, coach and assist toward a fair result. Each side participates in setting the goals for the Collaborative Team. The Collaborative Team eliminates much of the fighting. When questions arise over who makes how much, what value to place on businesses, and how to divide Real Property, what personal property will be included and who will get what, the Collaborative Team works to balance all considerations to achieve the Team Goals set by the Parties themselves.

(here is an interesting article about some of the potential problems with dividing real estate: http://www.nytimes.com/2014/08/03/realestate/divorcing-co-op-owners-rooftop-barbecues-and-costly-assessments.html )
  
   As assets increase, so does the news value of divorce. http://dealbook.nytimes.com/2014/07/24/kenneth-griffin-files-for-divorce-from-anne-dias-griffin/
Especially when the divorce involves significantly high assets such as the Griffin matter. When privacy is a concern, Collaborative Divorce is key. Agreements to keep the matter private are much more effective when all parties are sitting around a table and commit to common goals by signing their agreements not to resort to litigation. Agreeing to agree is possible.

    

Frequently Asked Questions: Mortgage Modification Mediation

For the past year, I have been involved in a company which trains attorneys to defend Foreclosures through Bankruptcy and the Mortgage Modification Process.

While normally mediations in foreclosure proceedings are not very successful, (less than 5 percent result in loan modifications or the owner being able to remain in the home) we have seen great success through a relatively new bankruptcy court proceedure requiring Mediation. In the Orlando area,  more than 70 percent of homeowners have been able to modify their mortgages and keep their homes through this program.

Yes, you read that correctly, higher than 70 % success rate through Mortgage Mediation in Bankruptcy in the Orlando Division of the Middle District of Florida!

While the program is taylored toward bankruptcy, any attorney can benefit from the training provided. To learn more, visit www.mortgagemodificationeducation.com or call me at 407-645-3297.

Now for those FAQs:

Do I have to file bankruptcy to save my home? No, but you must not rule out this alternative.
Why do the banks make it so hard to get a modification? Banks and their underwriters have VERY STRICT Guidelines to qualify a home mortgage for modification.
Why does the bank want to foreclose my home?  The bank DOES NOT WANT YOUR HOME. The bank wants a PERFORMING LOAN. In fact the bank must meet very specific guidelines once the foreclosure is completed in selling the home which results in significant lost value. For this reason, banks attorneys are very reluctant to move foreward with the foreclosure and will even resist completing the foreclosure on anything other than their own timeframe.
Is it too late to save my home? Not if the Foreclosure is still pending. However, once the home is sold at auction, and title is issued by the court, you probably cannot save the home. However, you may be allowed to negotiate your leaving on favorable terms with the new owner.
Should I hire an attorney to represent me? Yes, but be very careful that the attorney is familiar with the Mortgage Mediation Program of the Bankruptcy Court. Avoid simple Foreclosure Defenses as they seldom result in Modification of the Mortgage allowing you to remain in the home.

For additional information, visit www.mortgagemodificationeducation.com my website at www.aubreylaw.com or call me at 407-645-3297.

I look forward to speaking with you! Aubrey

Brain Gym - Excercise Your Mind

My mother works the Sudoku puzzel every day. Many people work on crossword puzzels, or brain teasers daily. These activities help keep the mind working and can (according to research) stall or prevent alzheimers, dementia and other brain lag that typically occurs with aging.

http://www.kenneymyers.com/blog/24-blogs-with-things-you-can-do-to-keep-your-brain-sharp-as-you-age/

Somebody asked that I put this link in my blog, and I trust you will enjoy the link.

Call me when you have legal questions at 407-645-3297, especially those questions related to Collaborative Divorce, Elder Law, Family Law, Guardianships and HAMP tier I and Tier II Mortgage Modifications.

Or visit my website at www.aubreylaw.com

Whose Interests Do You Represent?

As an Attorney, I am required to advance the interests of my client. Sometimes that doesn't appear clear from one perspective or another. Many, MANY times, the opposing party to litigation will try to convince my client that I am in fact NOT advancing their interests, but either I am working against them, or not working at all - claims of Dilly, Dally and Delay P.A.

What are my client's Interests? Perhaps a better description would be, my client hopes, dreams, and desires for their family. What my client wants, as the outcome of litigation is the primary "Interest" I must support. So long as my client is not seeking litigation just to harass the other side, or just to delay the inevitable resolution, I must follow the Client's direction.

A great note on Interests can be found here: http://be-fulfilled.org/post/2012/11/17/Helping-Clients-Understand-Interests.aspx

When you want the advice of an attorney, call me.

Don't be afraid to call; I assure you that many others have been in the same position and needed help. Bo Prosser likes to say the two most basic prayers are Please Help, and Thank you. I like that! Feel free to visit my website at www.aubreylaw.com and send me a message. You will be glad you did! Aubrey

I didn't mean to Scare you!

"Congratulations, you are officially Divorced!" I said to my client.

"Thank you, you are Awesome," she said. (Really, that is what she said!)

"I am so glad we were able to get this done so quickly," I replied.

"Well after you scared me that first day, I did not have any unrealistic expectations and we could just get it done."

I really did not mean to Scare my client. I have always prided myself on being direct and honest with clients so they know what to expect from the Divorce Process and from the court system. I really don't want to scare anyone. Sometimes, clients come in my door having talked to not only other lawyers, but to friends and family who "know what to expect" and know "all the tricks in the book." Unfortunately, what is heard from your friend about their divorce may be colored and biased by their experience. They may feel the need to project unusual success or even put upon martyrdom. All the stories may in fact NOT be completely true.

Common myths include:

"My divorce only cost $250."

"I didn't have to pay a penny in alimony/child support."

"My wife/husband got the kids, the house, and all my money."

"My husband/wife tried to get the kids just to force me to settle for less."

"I never get to see my kid's, their father/mother keeps them from me."

"My divorce cost us more than $100,000."

"Our attorneys were the only ones happy after our Final Judgment."

When your friends tell you these things, you really have to ask more questions and compare their life experience and marriage to your own before setting up your expectations.

Divorce filings cost $408.00 in all Florida courts. What your attorney charges is determined by many factors including time, experience, complexity, and most importantly, who is on the other side of the litigation.

Whether you have to pay Alimony or Child Support is entirely driven by the family situation inlcuding many different factors: length of marriage; number of children; earning ability of each party; lifestyle, and most importantly, what you are willing to accept or pay, just to name a few.

Negotiation over child custody, what we now refer to as "Timesharing," is remarkably direct. Who is best able to care for and keep the children? Who has done so consistently in the past? When one parent wants to "claim the children" as a negotiation ploy, it is imperative that the court be fully informed. A Guardian Ad Litem or GAL is essential to fully inform the court and make sure the children are represented both at the bargaining table of Mediation or in court. Parents who would use the children as pawns in a game, are not good parents, and GAL's are adept as seeing through people's behaviors to their motivations and goals.

If your divorce costs too much money, ask yourself who is causing the excess expenses? Even the most complex divorce can be handled in a reasonable amount of time and for a reasonable fee by seeking out attorneys who do not set up unreasonable expectations which must then be met or attempted. Collaborative Divorce is a great idea for those with very complex situations as it brings all decision makers to the table routinely, rather than filing, and waiting, and responding and waiting, and hearing, and waiting, etc.

If you have questions regarding Divorce, Child Support, Collaborative Divorce, Alimony, Spousal Support, Custody, Timesharing or any other Family Law matter, please visit my website at www.aubreylaw.com or call me at 407-645-5264. I will be happy to review your situation with you and most of all, I will try not to "scare" you! Aubrey

Litigation Management or Mediation Solution

A trial in Divorce Court is not pleasant. In Florida, we have "No Fault" divorces. Nobody gets to tell their side to the judge in hopes of a "win" where fault is not at issue.

He had an affair. She spent our nest egg. He gambled away our retirement. She drank too much. He was not supportive of her career. She wouldn't get a job after the kids went to school. She wouldn't pick up the dirty laundry off the bathroom floor. He left a mess in the kitchen every night.

I have heard a LOT of Excuses for Divorce. There are many good reasons, but sometimes the excuses feel better. Unfortunately, the court doesn't have time or interest in solving all these issues and assigning blame.

The Court's concern is summed up in PEACE:

Parenting: ususally shared. Which parent will have a majority of timeshare with the children?

Equitable Distribution: All the assets and liabilities acquired during the marriage have to be divided between the parties. That includes all retirement accounts, as well as any retirement benefits earned. Houses, cars and investments are legitimate negotiation points; however, furniture and fluff can cause too much litigation. I once spent an hour in mediation to divide a big screen TV. The mediator and two attorneys cost 850 for that hour, more than half the cost of a new TV. In the end, the TV was damaged when turned over and even more litigation ensued.

Alimony: In Florida, normally, we have short term, and long term marriages. Long term get alimony, short term do not. There are also "gray area" marriages which may or may not result in Permanent Alimony depending on several factors listed in the statutes.

Child Support: Once Alimony is awarded, child support is calculated based on the combined income of the parties. A mathmatical formula establishes how much child support will be paid. Negotiation of this amount is possible, but many judges want factual calculations and will award that amount regardless of settlement agreements because child support is the CHILD's interest and should not be waived by one or the other parent.

Everything Else: Attorney's fees. Costs. Mediation Fees. Etc. Anything that doesn't fit in the first 4 categories falls here. Sometimes agreeing to pay a set amount for Attorney's fees is preferrable to having a trial and paying many times the amount to "Win" in court.

PEACE Possible In Divorce!

Call me at 407-645-3297, or just visit my website at www.aubreylaw.com

PEACE is within reach!

Making Sound Decisions

Most people assume that given all relevant information they can make the best decision. Knowing what information is relevant can be a tricky proposition. One of my colleagues runs a commercial in the Orlando area wherein she says, if an insurance company sends an adjuster to your home to settle a claim, YOU NEED A LAWYER. The Insurance Company employs Many attorneys, and investigators, (called adjusters) to value your claim. These employees of the insurance company owe loyalty to the company, not to you the consumer. YOU NEED A LAWYER!

When presented with a contract of any kind, whether it be to purchase and install a security system or water softener, to purchase piano lessons for your child, to purchase or lease a home, to settle a matter in court, to divide a business interest, You Need an Attorney!

Even people who have attorneys at their disposal, be they family members, close personal friends, or even retained attorneys, may be reluctant to call and ask the important questions, primarily, WHAT INFORMATION IS RELEVANT TO MAKING THIS DECISION?

Sometimes important information to one party in a transaction is not important at all to the other party. Many times, irrelevant information is presented as a reason for the decision to go a certain way. These negotiation tactics harm the consumer if the consumer is unaware. An Attorney, working for you, can help make the best decision by ensuring all RELEVANT information is considered, and all Irrelevant information is ignored.

If you owed money, you would pay it. If you are owed money, you should receive it. Sometimes the question of who owes money to whom can be more complex than one piece of paper would indicate.