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Mediated Agreements Are Like Handmade Pottery?

Mediated Agreements are Like Handmade Pottery?

An imperfect berry bowl

I made a berry bowl at my pottery studio last week and picked up the completed bowl today. I’m still a beginner potter after three years. I try to make each piece as perfect as I can and they are never perfect. My berry bowl is not quite round. It must have been tapped while it was drying. The glaze I carefully applied to the top of the bowl was intended to run down the side in beautiful cascades. Instead, it was too thick at the top and some of the glaze ran from the rim creating patches of bare clay. Notwithstanding all of these imperfections, the piece is interesting and very functional. In fact, I sort of like it and plan to wash some fresh berries in it tonight for dinner.

Just like a mediated agreement, making a berry bowl is hard work

So how is this berry bowl like mediation? To start with, it was a lot of work. I first had to prepare the clay by kneading it until it was the right consistency. Then I had to weigh it, center it on the wheel, open the clay without throwing the piece off center, pull the sides, shape it, let it dry to bone dry, trim it, and punch the holes. Then it was thoroughly dried for several days and bisque fired in a kiln. At this point the bottom of the bowl was waxed to resist the glaze and the bowl was dipped in a cream colored base glaze, dried and then the rim was dipped in three different glazes, one after the other, to create the cascades of color. At last the piece was ready for the final firing in the glaze kiln. While in the glaze kiln, the magic happened – the glazes ran, mixed together and sometimes misbehaved. This piece emerged imperfect but very functional. The saying among potters at my pottery studio is, “If you want perfect, go to Walmart.” Truth be told, I sort of like my imperfect berry bowl and imagine I will enjoy using it for many years.

Mediated agreements are also imperfect

You may be able to guess from this description why mediated agreements are like my berry bowl. Mediation is hard work. The parties to mediation have to leave behind a lot of emotion and sometimes bad feelings. They have history that is painful in some respects. It’s also a meticulous process that involves dissecting the problem, identifying common interests, helping the parties figure out a way both of them can get most of what they want, and capturing the agreement in a written document. At the end, if the mediation is successful, magic happens. An agreement emerges that is functional, perhaps different from what each party initially wanted, almost always different from what a court would have come up with, but that is pleasing to the sensibilities of the parties and, best of all, enduring. From my experience the parties to mediation almost always walk out with ear to ear smiles. The relief from a resolved dispute is immense. There is also the pride that comes from having fashioned the solution yourself.

Imperfect is okay as long as it works

I love making pottery and also love being a mediator. I hope the agreements I mediate, like my berry bowl, will last for years and will be pleasing to the parties.

By |June 12th, 2016|Categories: Uncategorized|0 Comments

Mediation: What the Heck is it?

Mediation: What the Heck is it?

Both Google and lawyers are confused about mediation

Mediation is a process that is misunderstood by many people, including lawyers. Google the word and you will get search results for meditation, medication, and mitigation. Even Google is confused. In addition to being confused with similar sounding words, mediation is confused with related but different processes such as negotiation, arbitration, conciliation, and collaboration. Finally, to add to the confusion, there are different types of mediation – facilitative, evaluative, transformative, and directive.

Informed consumers of dispute resolution services should learn about the different types available

Because of this confusion, consumers of dispute resolution services should take the time to educate themselves on the different approaches to resolving conflicts rather than relying on advisors who may not fully understand the differences themselves. The internet provides a wealth of information on the various approaches to alternative dispute resolution. Websites such as mediate.com have numerous articles that describe in detail the different types of mediation and compare them to more traditional dispute resolution processes. In several hours on the internet, it is possible to gain a good understanding of all alternative dispute resolution services and become an informed consumer.

Mediation is superior to litigation

One hallmark of mediation is that it is voluntary, i.e., there is no subpoena power. Subpoena power is literally one of the only benefits of litgation. Alternative dispute resolution only works if both parties are willing to sit down together and talk about the dispute. If they are, and particularly if there is an ongoing relationship between the parties, any of the forms of alternative dispute resolution are likely to be superior to litigation in terms of time, cost, convenience, emotional wear and tear, confidentiality, and outcome. Best of all, the resolution of mediated disputes tends to be more enduring than that of litigated disputes. The parties have complete control of the outcome and can tailor a solution that meets their long-term needs. An enduring agreement tends to mend relationships and reduce the likelihood the parties will have future disputes.

Push back if a lawyer tells you litigation is less expensive than any form of alternative dispute resolution

If you are told mediation is more expensive than litigation, ask why. Make sure the person speaking is not confused. The best thing about mediation is that it generally works, even in very difficult situations. If that’s the case, why not try it first?

By |June 12th, 2016|Categories: Uncategorized|0 Comments

Negotiating with Sweet Tira

Negotiating with Sweet Tira

This blog entry was posted a year ago after the death of my dear coonhound Tira. It was my homage to her after her sudden death on May 19, 2015. I think about her almost every day and thought I would repost today in honor of her beautiful spirit and the negotiating we went through as I got to know her.

Tira arrives in my life

Tira came to me six years ago from a rescue group. She had lived wild in woods somewhere in Maryland for at least six months until she was finally trapped by animal control and then transferred to the care of an animal rescue group. She was fearful of virtually everything – men, trash cans, any stranger, boots, shovels, and even the camera I used to snap a picture of her. Her strategy of caution had worked for her since she had somehow survived a winter on her own. Her challenge was to figure out how to become a successful member of my family.

The rescue group volunteers who brought her to my home for an interview were very apologetic of her fearful behavior. Even though she was afraid of me, she was friendly to my very dog selective terrier. Most important, the first thing Tira did when she came into my house was touch noses with my shy cat who had bravely stepped forward to check out the new arrival. At that moment I knew Tira was a keeper. She had been accepted by my cat, Juliet, the most discriminating member of my family.

Tira settles in to her new home

Tira took a while to warm up to her new home, and in particular me. She lived under my bed for most of a year nervously chewing holes in the bed skirt. She preferred to do her toilet in the house rather than the back yard or on a walk. She wouldn’t eat from a food bowl, instead sneaking food from the bowl and retreating to a corner where she’d eat from the floor. In short, she seemed to continue behaviors she may have used when living in the woods.

While she remained wary of me for a year or more, she almost immediately became great friends with my old grumpy, bossy male terrier and then my younger, more outgoing rescue hound who joined the household a few years later. Her forte with them was energetic, physical play of the “play or die” variety. For a shy girl, she sure knew how to hit hard. She’d drag one of the dogs by his or her leg and then let them do the same to her. She taught them both to play with great gusto. She was a pack animal to the core.

Tira becomes an essential part of the household

As the terrier grew older and more infirm, Tira assumed a few very important household jobs. For one, she was in charge of waking me every morning by jumping on the bed and walking back and forth on me, sometimes belting out her hound yodel if I didn’t respond immediately. This was intended to make sure I fed them on time. She was also in charge of letting me know when it was time for her dinner– promptly at 5:00 pm, thank you very much. Finally, she would use her loud hound voice to announce any person or dog who came into or near the yard or house. I would often catch delivery men chuckling as they walked up my steps to a chorus of yodels and barks. The best part was the enthusiasm and sheer joy that Tira put into everything she did.

We are grieving

Now that she’s gone, there is an empty hole in my family. Her joy and enthusiasm tempered with shyness are missed. None of the jobs she had assumed are being performed. I have to set my alarm again. The scheduled feedings are late. There are no announcements blaring from the front door or backyard. My two surviving dogs seem a little lost. Her jobs have not yet been reassigned. We all relied on her and are being forced to somehow carry on.

Negotiating with Tira

This relationship wasn’t always perfect. Some negotiating took place. First off, my rule of no dogs on the furniture sparked a battle of wills between Tira and me. After trying a number of contraptions designed to keep her off the couch, I finally accepted that her joy in sleeping on the couch was far greater than my resolve at keeping her off. We negotiated and she won. Tira also loved to sneak food from the food bowls of the other dogs, a holdover from her days on her own. I won on that point and we established a strict “no touch” policy. She became very respectful of the other dogs’ food bowls. There was give and take on these and other issues. Over time we developed a relationship that worked for both of us.

Tira was one of a kind

Tira remained somewhat distant with me. Perhaps respectful is a better description. She was never one to jump on me or give me kisses. Instead she would quietly come near me and wait for me to acknowledge her and pet her. If strangers were in the house, she’d go into the other room or in a fit of bravery might huddle under my chair. My son finally got close enough to her to pet her last week. Because the couch was her favorite place to hang out, it is the one place where she would cuddle or even serve as a pillow.

Tira taught me so much

So, what does all of this have to do with my mediation practice? I see mediation as a process of negotiating a difficulty while preserving or redesigning a relationship. Whether it’s in the context of a divorce involving children, a family business, a plan for caring for an elderly relative, or incorporating a new pet into the household, the issues are the same. The challenge is identifying the interests of each of the parties and negotiating a solution that works and makes them happy. Sometimes the solution is simply redesigning the relationship. While the law or a judge may see issues as black and white with winners and losers, mediation focuses on interests and relationships with the goal of producing a more nuanced solution.

My dear Tira taught me a lot of things. One is the importance of simply being happy and cherishing relationships that make you happy. Another is the compassion to give in on issues that make someone you cherish happy. Finally, winning is not winning if it hurts an important relationship. Reality is that it is possible to win in court and still lose. My hope is that through the use of respectful, reflective, empathetic communication, I can help others resolve difficulties, preserve or redesign relationships and best of all be happy while not going broke.

Rest in peace dear little Tira. You are missed.

By |June 12th, 2016|Categories: Uncategorized|0 Comments

Real property equitable distribution in a divorce

Real Property Equitable Distribution in a Divorce

Looking to the numbers for the answer

This post considers an issue that frequently comes up in divorces, i.e.,  what to do with real property such as the family home, timeshares, vacation properties, and investment properties.  Typically, the options are to hold, sell, divide or share the real property, or some combination of these options.

 

Many times, the numbers provide the answer.

 

Here’s a list of the numbers that may be relevant:

  1. Purchase price of real property
  2. Loan balance and payment
  3. Annual cost of occupying the real property
  4. Tax basis in the real property
  5. Expected sales price of real property (net of transaction and sale related costs, including Federal and state income taxes)
  6. Annual net income from renting the real property
  7. Cash flow of each party post-separation/post-divorce

 

If this information for each property can be summarized side-by-side on a spreadsheet, the evaluation of the financial consequences of each possible option is relatively straight-forward.

 

Nonfinancial reasons for keeping real property

More difficult is deciding what to do when there is a non-financial reason to keep a property.  For example, couples might choose to keep the family home to provide stability for their children and allow them to finish high school in the same school district.  If keeping the family home for some number of years is a priority and money is tight, parties may need to structure creative living arrangements such as continuing to live in the same home but “separate and apart” or taking turns living in the family home with the children.  While these arrangements present challenges, they may provide benefits that outweigh the challenges.

 

Some questions to ask

Here are a few questions parties might think about and discuss as they make a decision with respect to property:

  1. If property is sold today, how would you expect to split the net proceeds?
  2. If money isn’t an issue, what is the desired disposition of each property?
  3. If you contemplate a deferred sale, who will occupy the property until it is sold and what is the desired financial arrangement?
  4. If the property is listed for sale today, are there any costs you would expect to incur to prepare the property for sale?
  5. Do you have a real estate agent you would use and have you discussed a possible sale with that real estate agent?
  6. If one of the parties intends to occupy one or more of the properties before sale, how should costs be divided? Some options include: equally, some costs equally and others to the occupant, by income, all to the occupant, etc.
  7. If one of the parties intends to occupy one or more of the properties, should rent be charged and, if so, how much?
  8. Are there benefits to having one of the parties occupy the property until sale that should be reflected in the financial arrangement for the occupancy?
  9. What happens if only one of the parties can afford to pay the cost to maintain the property and a sale isn’t feasible?
  10. Is there enough cash flow to carry all or some of the properties?
  11. Would any tax be due on the sale of any of the properties? If so, how is that tax liability to be split?
  12. Are any of the properties underwater, i.e., mortgage exceeds expected net sales proceeds? If so, how will the payment to the mortgage company on the sale be divided?
  13. If one party takes one or more properties as part of the property settlement, will that party qualify to refinance the mortgage?

 

Mediation can help find a solution

My own experience is that most couples sell all property that has a reasonable market and downsize in new homes that are more manageable from an upkeep and financial perspective.  Nevertheless, I believe mediation is a good platform for discussing all of the considerations, emotional and financial, so that both parties can feel comfortable that they have rationally considered  the options and are making a well-reasoned decision.

 

By |May 17th, 2016|Categories: Uncategorized|0 Comments