How to Ensure Compliance with a Written Agreement -- or Water, Water Everywhere: A Negotiation Story, Part 2
My October blog described how I settled a dispute for $4000 with a contractor who I had hired in 2017 to remediate water issues on my property. I paid the contractor $7174 yet he did not in any way resolve the water problem. You may recall if you read the blog that the contractor asked me to settle the case with him the morning that we were both due in court for our pre-trial hearing. I drafted the agreement that morning, October 18, 2019, and presented it to the judge a couple hours later in the courtroom. The default language I inserted would protect me if the contractor failed to pay me. Specifically, the language stated that if he did not comply with provisions of the agreement, I would ask the court for a judgment for the full $7174.
I worked out with the contractor on October 18th that he would pay me $2000 by company check that would be hand delivered to me by 2:00 p.m. on October 25th and $2000 by company check that would be hand delivered to me by 2:00 p.m. on November 1st. This language was in the agreement in black and white. And then I wondered if in fact the contractor would actually pay me. After all, this dispute had gone on for 2.5 years.
I was in Greenville, South Carolina on October 25th and called my high school son that night who was at home to see if the check had in fact been delivered. The check was not in the mailbox. The next day I called the contractor and, when he did not answer, I left him a voicemail and then texted him. He texted me back that both checks had been delivered and that one check was postdated, He texted me a little later to say that there had been a mistake and that the checks would be delivered on Monday, October 28th.
When I returned home from the weekend away, I tried calling the contractor that Monday. When he did not pick up the phone, I texted the contractor that I needed the check before noon hand delivered to me personally at the house since I was working from home that day. I also texted that he was in violation of the agreement. His assistant called and said that the person who was to deliver the checks was not in the office that day. I was tired of being jerked around after two and a half years. I told her in a no nonsense tone that I would be home til noon, needed the checks delivered immediately, and did not want the mailman to pick up the checks from the mailbox by mistake when he delivered the mail. The assistant talked to the contractor and volunteered to deliver the checks. I asked for her cell phone number and asked her to text me when she was leaving the office for my house.
When she arrived at my house, she had two checks for me: one dated October 28th (instead of the 25th) and one dated October 30th (instead of November 1st). I asked her if there was money in the account so that when I cashed the first check, it did not bounce. She told me there were not sufficient funds, to wait to cash the first check until later in the afternoon, and to text her before I went to the bank to deposit the money. I did as she asked, and the next morning the $2000 was in my account. I repeated the same steps on October 30th and the money showed up in my account the next morning as well.
This contractor had a B.S. from Virginia Tech in civil and geotechnical engineering as well as a Master's degree from Virginia Tech in geotechnical engineering. He came highly recommended by a lawyer I know who specializes in construction law. But when I looked back at our interactions from the beginning, I realized he did not actually listen to the details of what I was telling him, he did not draft a detailed plan for how to remediate the water issues, nor did he observe himself what was happening on my property when it rained. Lessons learned! I still need to interview contractors to solve the water problems on my property after the County installs the stubs at my curb so that the water on my property can connect up to the stubs and flow into the storm drains...stay tuned!
I recently negotiated a settlement to a dispute that had plagued me for 2.5 years. Here are my reflections from the whole experience:
• My contractor avoided communication with me as much as possible. The lack of communication greatly frustrated me.
• My contractor did not want to negotiate with me until I filed a claim in court.
• Negotiation in this case worked but only with the threat of litigation and and the real concern on his part that he could lose the case.
• Surprisingly, once I wrote out my Bill of Particulars that told the story of my dispute, I felt a huge sense of relief. A burden had been lifted somehow. I knew that someone was going to read my story -- hopefully the contractor and the judge. I felt that I finally had the opportunity to be heard.
• I hoped that I wasn’t experiencing judgmental overconfidence, a cognitive bias which we talked about recently in the law school class that I teach on Alternative Dispute Resolution. I felt hopeful that a judge would rule in my favor but cautious. It is not unheard of that a judge does not rule as a plaintiff hopes that he/she will. I felt confident but not certain that I would win the case.
And here is my negotiation story from my perspective:
Background -- April, 2017 to May, 2017
We built our house in 2001, and we have been trying to solve the severe water run off and flooding issues for years. The problem stems in part from my house location at the bottom of a hill and also in part because water from a large thought-to-be-abandoned cut off pipe on my neighbor's property pours onto our property in the back and side yards. An attorney colleague highly recommended a structural repair drainage and erosion company, saying that the owner was brilliant at solving water problems. I called the owner when water began to seep into my basement utility room.
The owner outlined the following solutions that would solve the water problem: (1) install an open French drain on the side of my house, (2) install a third catch basin in the back yard, (3) install a 4 inch underground pipe to carry some of the water out through the front yard, and (4) apply water proof sealant in the basement, among other measures to prevent water seepage. The work was completed in May of 2017 and I paid $7174 in full before the work commenced as required by the company.
The Problem -- May, 2017
Immediately after the work was completed, it rained and the water problem on the property was actually worse than before the work was performed. The amount of standing water along the side of the house where the French drain had been installed was the same or worse. Now the front yard was flooded and the back yard was flooded as usual with the new catch basin in the wrong location so it did not receive any water. I texted the owner of the company photos and a video of the water issues.
Attempts to Work with Contractor -- May, 2017
We asked the company's owner and employee to meet us at the house to observe what was happening on the property. The owner asked us to get in touch with Arlington County to discuss the water issues. His perspective was that our neighbors should be held responsible for water coming out of the pipe since the pipe is located on their property. We told him that we would contact the County and would stay in touch with him.
Work with Arlington County -- May, 2017 through May, 2019
We started working with two engineers who asked us to be patient since parts of the County were flooding worse than our property. The engineers studied the issue for two years, pulled together a budget for the project and worked with other County engineers to identify all the issues, brainstorm solutions, and evaluate those proposed solutions. They stated that the French drain was never the correct solution for the water issue, nor was it sized to have a chance at solving the issue.
County's Proposed Solution -- May, 2019
The County will install two stubs at the curb that will be connected by the County to the storm drains. My job as homeowner is to pay for drain boxes and a large 15 inch underground pipe to carry the water along the side of my property down to one of the stubs that will be installed on my property. (The other stub is for my neighbor if he chooses to install a pipe on his property to connect to the stub.) The French drain will need to be removed. We have no idea how much the drain boxes and new large (15 inch) pipe will cost.
Further Attempts to Work with Contractor -- May, 2019
We set up a face-to-face meeting with the contractor and his employee to discuss the county’s proposed solution; a couple minutes before the meeting took place the owner’s secretary called to say he would not be coming with no reason given. We told the employee, who did show up to the meeting, that the county engineers had stated that the French drain was never the correct solution and would need to be removed.
Settlement Attempts -- June, 2019 through August, 2019
I texted the owner 6 times in June and July asking him to respond to our concerns. He had told me that texting was the best way to reach him. He did not respond.
We also emailed him 15 times during this time period. The owner responded once to say that our French drain should be cleaned, that he was more than willing to help, and that he would let us know his thoughts – but he did not communicate with us further.
We also called the owner and left messages. I asked him for a detailed written cost breakdown of the work that he had done – but did not get one.
We sent the owner a letter in June asking that he refund us the money that we paid for the French drain, the 3rd drain box, and the 4 inch pipe in the front lawn since these items were the wrong solutions to managing the water problem. We asked him for a detailed cost breakdown of the $7174 that we paid. We did not receive a written response to the June 18th letter.
I filed a claim in General District Court in Arlington County on July 24, 2019. We received an email from the owner that said in part that he could offer a credit for the work performed but did not give a dollar amount. We responded and asked him for a specific refund amount rather than a credit. We did not want to do any future work with this particular contractor.
I heard from the owner by email on August 19th. He stated in his email that “we can credit you $4000 towards the additional pipe to be installed, which was approximately the cost to install the French drain system. Assuming that no permits need to be obtained from the county or engineering plans developed, the cost for installing a large pipe or a series of smaller pipes to be connected to the new stub will be approximately $12,000. This includes removal of the French drain along the fence and placing the stepping stones and gravel back in place.”
Court Appearance – August, 2019
The owner and I met in General District Court for a first appearance on August 30th. The judge asked me to file a Bill of Particulars by September 13th outlining my claim. She asked the owner to respond to my claim by October 11th. She set our next court appearance for October 18th, which would be a pre-trial hearing.
I spoke to the owner in the courthouse hallway in a friendly conversation after the court appearance on August 30th in another attempt to settle the case. He said that he didn’t remember that the water run off down the hill was a problem. I mentioned to him that, due to this run off, we would need a really long pipe installed down the length of my property and fence line to the stub which meant that his cost estimate of $12,000 was very low and did not factor in the length of the pipe needed. In addition, he did not remember why the pipe in the front lawn stops in the front lawn which causes flooding in the front yard, instead of on the very edge of the lawn.
I asked him for a refund of $4000 instead of a credit and asked him to think about my offer and get back to me within a week. I expressed frustration to him that my emails, texts, and phone calls to him had not been returned. I followed up our friendly conversation with an email summarizing our talk.
Bill of Particulars -- September, 2019
In September, I filed my Bill of Particulars with the Clerk’s office and sent a copy to the owner. The owner emailed me offering to settle the case for $3000 plus $1500 in credit toward future work. I responded that I would like to settle the case for $4000 payable immediately. He countered with a $3500 offer. I responded that I had paid him $7174 to solve the water problem and that the flooding was substantially worse immediately after he performed the work. I said that I had a 51 second slide show of photos taken and video shot in the rain just before he did the work and immediately after he completed the work that told the whole story. He responded that it could not be possible that my water problem was worse now than before he did the work. He said that I could bring an expert witness to court to explain how he was at fault.
I did not receive the owner’s Response after it was due to be filed in the Clerk's office on October 11th. I called the Clerk’s office, and I was told that he had not filed a Response.
Settlement at Last! October, 2019
The morning of our second court appearance, which was scheduled for 2;00 p.m. on Friday, October 18th, the owner emailed me that he would accept the $4000 offer I had made to settle the dispute and asked me to draft an agreement to bring to court. When I drafted the agreement, he said that he could not pay me on that day. I worked out with him that he would pay me $2000 by company check that would be hand delivered to me by 2:00 p.m. on October 25th and $2000 by company check that would be hand delivered to me by 2:00 p.m. on November 1st. I added default language to the written agreement that stated that if he did not comply with provisions of the agreement, I would ask the Court for a judgment for the full $7174. We both signed the agreement. He told me that he would not be appearing in court that day.
In court, the Judge accepted the agreement and set the next court appearance for November 4th, stating that if and when the owner paid me in full, I would notify the Court and the Clerk’s office would dismiss my claim.
Stay tuned to see If the contractor pays me in full by November 1st...
I met realtor Helaine Newman at a Women Who Mean Business networking event over the summer and knew right away that I wanted her to write a guest blog post for Little Falls Mediation. Helaine is full of life and personality and is a lot of fun to be around. She is smart, highly successful in her field, and extremely knowledgeable, When she is not working, you can find her kayaking, biking, hiking, and engaging in adventures all over the world.
When my 25 year marriage broke up, I found myself 53 years old and suddenly single. There are many challenges when you find yourself single and alone after a long term marriage. Financial, emotional, and social changes are inevitable. Today, my focus will be on the social challenges. These challenges do not just apply to divorce but also resonate for people whose spouses have died or whose children have left the nest.
At the time I left my marriage, I had many friends. Unfortunately, most of them were married. I had a lot of support from my friends. They were happy to meet me on a Tuesday afternoon for lunch, but they were not willing to hang out with me on a Saturday night. I quickly realized that I had to make some changes if I wanted to have a active social life!
I talked to various friends and searched for resources to get me “out there” so I could make new, single friends. I quickly discovered meet-ups, which are organized, interest-based groups. No matter what your interests are, there are meet-ups out there for you. There are biking, hiking, cultural, art, wine, sports and dining meet-ups. There are even age based meet-ups. For example, there is a meet-up called 50+ Active, Fitness, Fun and Friends.
I joined meet-ups, biking groups, and other clubs. The important thing was that I went into these groups with intention. Whenever I would meet someone with whom I felt I had some kind of bond, I would be sure to get his or her contact information and reach out. Before long, I had many single friends with similar interests in my age group. I never had to spend a Saturday night alone again.
Try not to get hung up on worrying that you are not good at something. Don't be afraid to try something new. I met many of my new friends on group bike rides. While I love to bike, I am always the one bringing up the rear. Let’s just say that I like to stop and smell the roses. When the group would gather and would talk about the pace and who would sweep from behind, I would raise my hand and say, “Please don’t wait for me because I am slow and will be riding behind.” Inevitably two or three other women would shout out, “I’ll ride with her!" Hence, I had my new biking friends.
After being single for awhile, I decided that I wanted to start dating again. Now dating is never easy at any age, but for someone over 50 who lives in the suburbs, dating is particularly challenging. Once again, I felt that the most important thing was to go at the process with intention.
I decided to try the dating sites. I searched through what I thought were my best photos and then got feedback from all of my friends. I painstakingly tweaked my profile until I came up with exactly what I wanted to put out there about myself. I held my breath and dived into the dating world again. Similar to the meet-ups, there are now specialized sites for whatever your interests are. There are religious sites, such as JDate and E-Harmony. There are age appropriate sites like Our Time for the over 50 crowd. Before long, I had a busy, fun and exciting social life and I have never looked back.
The most important thing is to remember to go into all of these social changes and challenges with serious intent, a positive attitude and of course, never forget to smile. Others will be drawn to you and your dance card will fill up, I promise.
Pictured above are Helaine and friends on a recent Backroads trip to California.
Recently, I was asked by the Executive Development Program department at the Schar School of Policy and Government at George Mason University (GMU) to speak at GMU's Antonin Scalia Law School to two visiting delegations from China organized by the Hubei Provincial Supreme People's Court. Participants were Presidents, Vice Presidents, and Deputy Directors of different courts in the Hubei Province of China. The delegations were in the U.S. to study Alternative Dispute Resolution (ADR) and were interested in hearing about an overview of ADR, what the range of dispute resolution options include, and any other topics related to ADR.
No one in the groups spoke English so we had the help of an intrepreter. My speeches focused on Negotiation and Mediation and included discussions about the ADR spectrum in the U.S, competitive versus interest-based negotiation, and the mediation process. Lots of questions were asked about court-referred mediations versus private cases I handle through Little Falls Mediation and about how to run a mediation practice! It was a lot of fun meeting and talking with these visiting lawyers and judges.
Guest blogger and college student Katherine Barnes recounts her story of acting as her own mediator in a landlord/tenant dispute.
Merriam-Webster defines mediation as “intervention between conflicting parties to promote reconciliation, settlement, or compromise”. Earlier this year, I had to serve as my own mediator while resolving various issues with my landlord in Oxford, Mississippi. Before I moved into my apartment, I was told by the apartment staff that I would be the only one leasing my particular unit. However, when I arrived at the apartment complex companionless, I was told that I was moving into a unit that was already occupied by one other tenant. I was unhappy with this information, as I was initially told that I would have the unit all to myself. Nevertheless, I hid my dissatisfaction and brought all of my possessions up to the apartment.
As soon as I hauled all of my belongings up three flights of stairs and opened the door, I was absolutely horrified. Half-eaten food littered all over the counters, bags of trash spilled out onto the floor, and clothes and junk were spewed everywhere. I immediately realized that I had to confront the staff at my apartment complex, as I could not bear to live in such a mess. I was disappointed and frustrated that I was completely led astray when signing my lease, a legally-binding contract. I felt a lack of respect from staff, because of my young age, and also feared that the staff members were taking advantage of me being young, alone, and defenseless.
Although I typically avoid confrontation, I calmly initiated a productive conversation with a couple of the managers at my complex and explained how the apartment was unfit for me to move into. The staff members encouraged me to move into the unit anyways, offering me gift cards and a cleaning service to eradicate the mess. While I appreciated the offer and their understanding, I was still extremely displeased with the situation. I voiced the importance of giving tenants accurate and timely information, said that I was completely misled with all of the information that I received prior to moving in, and mentioned that I was not comfortable moving into that particular unit.
Thankfully, one of the managers listened to all of my concerns and agreed to move me into a different unit. The unit was immaculately clean. However, I had to compromise about living alone, and I ended up sharing my living space with one other tenant. Overall, I was pleased with the situation and I actually enjoyed my roommate’s company. The managers at my complex promised that our unit would be privatized, and that no other tenants would be able to sign a lease for our unit. This verbal agreement provided me with a peace of mind for the time being.
Unfortunately for me, three months later I was told that another tenant would be moving into my apartment because “no other units were currently available”. Because of the first landlord-tenant issue that I experienced, I became slightly more comfortable with confrontation. It still wasn’t easy for me to be firm with people who had authority over me, but I had no other choice. I again expressed my discomfort with the staff at my complex and reminded them about our agreement to privatize the apartment.
Although I was frustrated to say the least, I remained calm to ensure that the conversation was productive. I voiced my empathy and respect towards the other tenant, while still standing up for myself and for what I had been promised three months prior. The apartment complex staff members apologized and respected my wishes. The other tenant was moved into a different unit, one that was not privatized. If I had not stood up for myself, I would have lived with two roommates after signing a lease with the intention of living alone. While it was not an easy situation to maneuver, I am happy with what I have learned from the experience. I now know the importance of compromise, communication skills, and standing up for myself.
I know a teenager who lives here in Arlington, Virginia and his father has lived on the West Coast since he was three. His father works hard at his law practice and typically does not see his son on Father’s Day.
With Father’s Day looming this year, this teenager decided not to dwell on his absent father. He was spending time with his friends the day before Father’s Day, and they were all talking about summertime, fast approaching now that school activities were winding down, projects were completed, exams were taken, and sports and theater seasons had just ended. Usually, during the school year all of these teenagers are over-committed with extra-curricular activities, community events, volunteer projects, sports, and jobs.
This teenager found out that, to his surprise, several of his friends had dads who were going to be out of town for Father’s Day. So he organized a day of fun with them. They hung out, threw around a frisbee, went biking, went to Trader Joe’s to get snacks, and celebrated the sunshine and lack of rain on the roof of a friend’s apartment building.
Then this teenager brought three of his friends to a cookout at his house along with his mother, his sisters, his sisters' boyfriends, his stepbrother, his stepsister, and his stepfather. There was a lot of food – burgers, sausage, chicken, peaches – all grilled by his stepfather. There were chips and guacamole, lots of fresh fruit and vegetables from the farmer’s market, hummus, salad, and brownies for dessert.
The teenager went down to the basement after dinner with his friends and later in the evening, the moms started arriving to pick up the friends. But to the delight of all of the teenagers, the moms stayed for conversation and to have a couple glasses of wine. By the time everyone headed home, it was 11:00 p.m., and the day had been an unexpectedly perfect one.
In March, I wrote a blog post about grief and resilience, not knowing that my son John, a sophomore in high school, was writing an article about resilience in his English class at the same time as well. I didn't know that he had submitted his piece to a magazine for publication, encouraged by his wonderful teacher, Adrienne Wichard-Edds, until he received a notification that his article would be published in the May/June, 2019 Your Teen magazine. The magazine even paid him $35 for his piece! Here is John's article, which was part of the magazine's cover story on Resilience:
Stress and Resilience: For Me, It's About Overcoming Stress, Not Avoiding It
The chair I just threw at the wall makes a noise louder than a balloon popping next to your ear. I might’ve just broken school property, but damn, it felt really good.
It had only been two hours since all of my work was deleted. I had been editing my current film project, and the computer was out of storage when I needed to import new footage. My teacher mistakenly deleted my whole project while trying to free up space, thinking that he deleted something else. It was partially my fault for inadvertently saving my project to a folder for the middle school play our school put on two years ago.
I had no backup. I stayed after school with my teacher trying to somehow recover the files. Five trillion thoughts rushed through my brain. I’m going to have to re-edit that scene I worked on for three hours. The one that took so much tinkering to get right. How am I going to finish this on time now?
Should I just give up? Everyone thinks I’m an idiot.
Suddenly it was 8 o’clock. The teacher had left two hours ago, and I’d been trying to recover the files. Nothing came up. Every time I thought about all the editing I’d have to redo, I threw a chair at the wall. At the ground. I banged my fists on the table. It didn’t feel like I was in control of my own body. Then I got a text from my friend Ellie, who was there when all of my work was lost.
Did you find the files?
At least you didn’t lose your footage. I think you just have to accept the fact that you’re going to have to re-edit this thing.
She was right, of course. I needed to look on the bright side. Editing is one thing, but imagine if I had to reshoot the hours of footage I had! That makes the whole re-editing thing seem like a vacation in comparison.
It may have taken me a few hours to get to the realization, but I finally understood that it was time to adjust to my new reality. When I got home, I made a schedule of what I was going to edit each day. It was time to take this seriously.
I learned that maybe I actually can handle what life throws at me. I can be strong and put together. First I have to get out of my own way.
John Barnes is currently a sophomore at H-B Woodlawn in Arlington, VA. You can watch his newest (no longer deleted) film Reject and other projects at vimeo.com/johnbarnesfilms.
My clients always ask me, "Do we need to hire an attorney if we are working with Little Falls Mediation?" Although I am an attorney, my job when working with my clients in mediation is to be neutral at all times -- not to be an advocate for each party. I always advise my clients that it is a good idea for each of them to retain counsel so that they can ask for legal advice throughout the mediation process, as well as have an attorney review the draft Marital Settlement Agreement or Memorandum of Understanding that I have written for them. Karen Keyes is this month's guest blogger. Karen is a friend and colleague and founder of Arlington Collaborative Law. I ask her to speak to the law school class I teach each fall at GMU, Alternative Dispute Resolution, on the topic of collaborative law. I've asked her to be guest blogger this month to explain how she often works as a reviewing attorney after a mediation agreement has been drafted.
As a Family Law Attorney, I am often contacted by a potential client with the request that I review an agreement reached in Mediation. It is important that the client (and the person referring the client) understand what to expect from the Attorney under such circumstances. The parties have come a long way and have done a large chunk of the work to frame an agreement; the Attorneys then can help the clients cross the finish line!
A Mediator following sound protocol would inform the parties at the beginning of their Mediation that the Mediator does not provide legal advice and the parties should each have any agreement reviewed by their individual attorneys prior to signing a settlement. The Mediator should also inform the parties what the Mediator’s drafting policy is. The Mediator cannot provide legal advice or represent either party. The Attorneys, not the Mediator, should be responsible for the final contract. Both parties cannot be represented by the same attorney.
Furthermore, it is sound practice for the Mediator to work with the clients to summarize their financial disclosure to one another (assets, debts and income) so the consulting attorney has access to both parties’ information.
Ideally, the client has met with, and hired the Attorney, to consult with the client throughout the Mediation Process, so that by the time an agreement is reached, there are no surprises to either the client or the Attorney. The clients save funds by working together directly with the Mediator and the Attorney’s fees are lower when the Attorneys are not directly negotiating with each other on behalf of their clients.
The Mediator may prepare a Summary or Memorandum of Understanding reflecting what is agreed to (such document is not intended to be signed by the parties). If a document is signed by the parties, it may be legally binding and very difficult, if not impossible, to change unless the parties both agree.
Once the parties have a verbal agreement on the issues, and a Memorandum from the Mediator, then a determination is made regarding who will draft the settlement contract (which includes the necessary legal language and would be signed by the parties when in final form). Some Mediators will offer to draft the settlement contract; some may not. The client should inquire with the Attorney whether the Attorney has a preference regarding who drafts the contract (Mediator v. Attorney).
In any event, at the very least, each party should consult with a separate Attorney regarding the content of the settlement contract before signing the document. The role of an Attorney advising the client is to obtain the facts for a good intake (including but not limited to the disclosure summary prepared in Mediation), to inform the client regarding the applicable laws on any topic that is relevant and how those laws apply to the facts and the tentative agreement, to discuss whether there is any additional disclosure that should be obtained prior to entering into a signed settlement contract, and to be sure the client understands what is being agreed to and the impact that it could have over time.
The Attorney advises the client whether certain topics should be added to the agreement. Further, the Attorney would need to review any contract, if one has already been prepared, and to advise the client regarding any changes to the content and verbiage.
Sometimes, when a Mediator informs the parties they should each consult with an individual Attorney before signing a settlement contract, the client may not have the full understanding of the role of the Attorney. I have had clients request one hour of my time to do the job. Every case is different. Yet, unless a case is very simple and the assets or debts are minor and there are no child or spousal support issues, it is very difficult to get much accomplished in one hour. It is reasonable to expect that it may take a few hours for the consult, intake and discussion, and then more time to review the Agreement and make suggestions regarding content and verbiage.
Once a settlement contract is finalized and signed, it then becomes a binding legal contract and is likely to be incorporated into a court order (i.e. divorce, custody, support etc.) The reason to consult with an Attorney is (1) so the client understands what is being agreed to; (2) so that the document is solid, will be acceptable to the court, and durable over time; and (3) to avoid any contest over the agreement in the future. The legal consultation is not just a matter of checking in, but to assess the legal work needed that exceeds the responsibility of the Mediator.
A good Attorney who is asked for review should understand the concept of client self-determination and still be able to advise the client and provide any protections that are beyond the scope of work that the Mediator can provide.
If the client brings a signed settlement to the Attorney to use in obtaining a Divorce, the Attorney is then taking action to incorporate a settlement contract that the attorney had no responsibility for prior to its execution. Depending on the content, the Attorney may or may not be willing to do so.
In closing, it is best not to be “penny wise and pound foolish.” Allow time to get legal advice along the way and to have an attorney be involved in the drafting of the settlement contract before signing the document. The settlement contract is more likely to meet the needs of the client and avoid unnecessary costs that could arise later due to lack of clarity, interpretation and/or enforcement at a later date. Once the agreement is complete, the client should be able to have confidence in the document that is signed.
“Note to self: every time you were convinced you couldn’t go on, you did.” -- Unknown
Death, divorce, illness, and unemployment are four big sources of stress in our lives. When I first meet my clients, they don't have to tell me they are going through a really tough time in their lives. I see grief and loss written all over their faces. I often think of Sheryl Sandberg, whose husband Dave died while they were both on vacation in Mexico celebrating a friend's 50th birthday. Sheryl took a nap and Dave went to the hotel gym where he died suddenly after falling off of a treadmill and suffered head trauma and blood loss. An autopsy revealed that he had suffered from coronary artery disease. Sheryl wrote and spoke openly about being "swallowed up in the deep fog of grief".
Many, if not all of my clients, are openly grieving as well. I watched Sheryl's commencement speech at University of California, Berkeley a year after her husband's death -- or as she says, one year and thirteen days after she lost her husband. She said that for many months afterward there was a void and described "an emptiness that fills your heart, your lungs, constricts your ability to think or even to breathe."
Sheryl talks about how she hit the books to try to understand and process grief and resilience. She looked at the data and quotes psychologist Martin Seligman in saying that there are three Ps -- personalization, pervasiveness, and permanence -- that are common emotional reactions to so many things that happen to us and are critical regarding how we all recover from hardship.
• Personalization is the belief that we are at fault. Sheryl says that not taking failures personally allows us to recover — and even to thrive.
• Pervasiveness is the belief that an event will affect all areas of your life. Sheryl says that she realized that other things in her life were not awful. After all, she and her children were healthy and had loving friends and family.
• Permanence is the belief that the sorrow will last forever. Sheryl says that we often project our feelings out indefinitely. Instead, we should accept our feelings and recognize that they will not last forever.
How do we define resilience? Harvard Business Review says that resilience is the ability to recover from setbacks, adapt well to change, and keep going in the face of adversity. (Harvard Business Review, January 5, 2015)
Organizational psychologist Adam Grant says that terrible things will happen and that resilience is crucial; the key is how you recover. “I think about resilience as the speed and strength of your response to adversity. So when you encounter a difficulty, a hardship, a challenge, how quickly and how effectively are you able to marshal strength and either overcome that challenge or persevere in the face of it?” (CNBC, June 7, 2017)
Sheryl said in May of 2017 at a commencement speech at Virginia Tech that we are not born with a certain amount of resilience. Sheryl says that resilience is a muscle, and that means we can build it. "We build resilience into ourselves. We build resilience into the people we love. And we build it together, as a community... It is in our relationships with each other that we find our will to live, our capacity to love, and our ability to bring change into this world."
Sheryl talks about building resilience through shared experiences and narratives, relying on others, acknowledging our friends' challenges, being present for those in need, growing and nurturing hope, lifting each other up, celebrating joy, and cultivating gratitude and appreciation. "Counting your blessings increases them. People who take the time to focus on the things they are grateful for are happier and healthier."
So write down three things that went well today -- instead of three things you did wrong. Call a friend whose mother just died instead of avoiding him because you don't want to bother him. Think about what you appreciate in your life instead of all of the things that are not going well. And reach out to your friends and family to help summon strength instead of isolating yourself.
"If your heart is broken, make art with the pieces." -- Shane Koyczan
Just about every new client asks me this question. Usually, a potential new client will reach out to me by email or by phone call. I set up separate confidential phone calls with the potential client and his or her spouse or partner, since most of my cases are family mediations involving separation and divorce. These phone calls are called intake calls where each party can ask me questions about how the mediation process works and share information with me about the case. After the intake calls, I send each party an intake form to fill out and to send back to me. The intake form provides me with information about each party and also facilitates each party to start thinking about mediation goals and interests. A date is set for a first mediation session. At some point during this intake process, a client will ask me, "So...how should we prepare for our first mediation session?"
Here are my tips for how to best prepare for mediation:
1. Be prepared to be present and to listen. During mediation you will take turns listening and speaking. Bring paper and pen to take notes during mediation when the other person is talking. People often like to talk; it's much harder to listen. Keep in mind that listening does not mean agreeing. Tears and laughter often occur during each session -- bring tissues. Schedule the mediation for a time when you are high energy and well rested, such as mid to late morning.
2. Think about the issues you would like to discuss and prioritize them. One client said to me during intake, "We've never mediated before and we've never gotten divorced before. We don't know what we don't know. Can you help us figure out what issues we need to talk about?" In general, divorcing couples need to think about discussing a parenting plan if they have children that will include resolution of issues such as custody, parenting schedules, holidays, vacations, and child support. If there are no minor children, a mediation may begin with discussion of how to divide assets and liabilities, how to calculate spousal support if applicable, and what to do about real estate, taxes, retirement, insurance and other issues.
3. Gather necessary documents and information. Organize your financial documents and record your monthly expenses. Set up an organizational system if you don't already have one in place so that you have easy access to all of your utility bills, mortgage statements, car loan documents, credit card and bank statements, retirement account information, tax returns, homeowner/car/liability insurance statements, appraisals of valuable items, and all other important financial documents and records. Estimate the net worth that you and your spouse have accrued. Often one spouse was involved in handling the finances in the marriage (paying bills, budgeting, investing) and establishing relationships with the family accountant, attorney, and financial advisor. It's necessary for both spouses to be completely transparent with each other regarding all of these matters.
4. Identify key interests. Work out what interests are important to both of you and then work out a strategy for trying to reach a settlement that addresses these interests. Use Bill Ury's interest-based negotiation strategy: (a) separate the people from the problem, (b) focus on interests not positions, (c) get creative and brainstorm a variety of options where both sides can win before settling on an agreement, and (d) use objective criteria to evaluate options. Interest-based negotiation requires communication, collaboration, cooperation, and compromise; positional negotiation involves holding onto a fixed idea or position and not wavering. In divorce mediation, the core issue when there are minor children is what is in the best interests of the children. For example, a parent may want to spend every day of each school break with his or her children after divorce and realize at the same time that it is in the best interests of the children for both parents to share equal time with the children on vacation days. Some parents choose to split school vacations, some parents alternate vacations, and some families vacation together post-divorce.
5. Reality check your case. Each party should retain an attorney with whom to consult at any point during mediation and who can review the written agreement the mediator will draft after all decisions have been made in mediation. (Although I am an attorney, as your mediator, I must maintain neutrality and cannot also function as the reviewing attorney.) Ask the lawyer how he or she thinks a judge may rule on an issue that may be particularly difficult to settle in mediation, if the case were to go to court. Consider the lawyer's wisdom and advice as negotiations proceed in mediation.
6. Assemble a team of advisers if necessary. A divorcing couple may wish to find a certified divorce financial analyst who will work with both parties as a financial neutral. The parties may also want to jointly consult with an accountant, tax adviser, business valuator if either party owns a business, real estate appraiser, therapist, parenting coordinator if there are children, and a retirement expert if necessary. We may bring one of these consultants into mediation for a short period of time by phone call or in person. Each family is unique and sometimes there is no need for a consultant at all.
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.