“We agree completely on everything, including the fact we don’t see eye to eye.” — Henry Kissinger
Sometimes clients are in a hurry to start mediation. After I speak to both parties in separate no charge fifteen minute confidential phone consults, I send them a joint email thanking them for reaching out and attach the forms that we use in mediation. The basic forms are: (1) a confidential intake form; (2) an Agreement to Remote Mediate; and (3) financial worksheets. Not all cases require financial worksheets but many family cases do require the use of financial worksheets.
Each party fills out the confidential intake form electronically before we meet in mediation. The purpose of the form is to get each party to think about what the goals are for mediation, as well as what is currently going well and what is currently challenging. What does each party fear? How well do the parties communicate and cooperate? The responses also give me information about the parties, such as whether there are particular items of concern to either party, including alcohol, drug use, domestic violence, and/or mental health issues.
The Agreement to Remote Mediate is a document that spells out what the mediation process entails, the role of the mediator, confidentiality during mediation and exceptions to confidentiality, the importance of full disclosure of property and financial information, the use of joint and separate sessions, and fees, among other items. The parties and I all sign and date the last page of the Agreement to Remote Mediate before we meet in mediation. I go over the key points contained in the Agreement during the first few minutes of the first mediation session.
I ask the parties to take their time in filling out the financial worksheets and to fill them out electronically when they are ready to discuss financial matters in mediation. Parties list information regarding their bank accounts, investment accounts, defined contribution retirement accounts, defined benefit retirement plans, real estate, life insurance, business or professional interests, household items, vehicles, credit accounts, separate property, income, health insurance, and debts owed to each party, among other items.
Sometimes it is difficult to collect these three completed forms from my clients. I will gently remind my clients to email the Agreement to Remote Mediate and the intake forms to me the day before we meet. Sometimes clients do not completely fill out the financial worksheets when they are ready to discuss financial concerns. They may choose to discuss financial issues during the first session or during the second mediation session. We use the financial worksheets to decide how the parties will divide assets and liabilities in family cases. In addition, if I am calculating child support, I need to know how much time the children will be spending with each parent, the monthly gross income for each parent, and the monthly medical, dental, and vision premiums for the children.
After the parties have identified each issue, brainstormed solutions to each issue, evaluated each solution, and come to a joint decision on each issue, I write up a draft settlement agreement for the parties. The agreement is non-binding until both parties sign it. I encourage a legal review of the agreement and explain that even though I am a lawyer, as a mediator I am their neutral and not their legal advisor.
Our family had a big year in 2021 -- we celebrated four graduations and threw a surprise wedding!
To recap: Katherine graduated from college and moved to Houston to work for a start up in sales and business development; her boyfriend Kevin moved to Houston as well and is working as a commodity associate. Will graduated from college and obtained a job in cyber security in northern Virginia. He is also in the U.S. Air Force Reserves. Julia graduated with her Master's Degree in Journalism, accepted a new job in D,C. in communications, and relocated from Colorado back to northern Virginia with her boyfriend Nick, a mechanical engineer. John graduated from high school and went off to college, and he is creating a pilot episode for a PBS NewsHour series on the topic of youth mental health. Katie started a new job as a business design consultant and bought her first apartment in D.C.
We celebrated my milestone birthday last month in Key West, and Joel celebrated his milestone birthday on Christmas Day, 2020, at home with all of our children.
It's not easy to throw a surprise wedding, but Joel and I figured that after meeting over 55 years ago in kindergarten, dating for the past 11 years, and being engaged for the past 6 years, the time was right. If not now, when? We liked the idea of surprising all of our children just before the holidays. We knew that they would be very happy and excited for us. In addition, none of their lives would be changed or impacted in any way from our marriage. We had blended our two families very slowly and gradually over the past 11 years. Most people assumed we were already married.
It was a little challenging to accomplish the goal of having all of our children gather in one place on time, and we were stressed the Friday night before the Sunday morning wedding. We worried that maybe work would interfere or that they would not be punctual or be dressed in formal attire for pictures. We had told them a while ago that we were gathering for family photos, brunch, and a gift exchange on December 19th. They kept forgetting. So we broke the news to them Saturday, December 18th that there was also going to be a wedding at home the next morning. For years they had wondered when we would tie the knot. They were shocked and excited when we surprised them with our news.
On Saturday night our photographer canceled when I emailed her a quick note to say that we were all double or triple vaccinated. She replied in an email that we were not a good fit for her and that she was not vaccinated at all. A wedding photographer angel, Nick at JB Elliott Photography, soon came to our rescue; he was vaccinated and always wears a mask when he photographs weddings.
We had a fabulous day on Sunday, December 19, 2021 with our longtime friend and Rabbi Jeff Saxe coming to our house to marry us and sing two beautiful songs on his guitar, all of our children going to brunch in Georgetown on the waterfront to celebrate, and then all of us returning home for tree trimming and a White Elephant gift exchange. It was not easy getting everyone together given busy schedules and, of course, the pandemic -- but we pulled it off!
Katherine flew back to Houston on December 20th, got her booster vaccine on the 21st and tested positive for Covid on the 22nd. We all tried to remain calm. What choice did we have? She had no symptoms, never felt sick, and never developed any symptoms.. We notified our rabbi and our photographer immediately. All of us have tested negative for Covid numerous times since the 22nd.
As we look ahead to 2022, we wish everyone good health and much happiness in the New Year!
Top photo by JB Elliott Photography, bottom photo by Lisa Halpern
This year, our children all went to Charlottesville after Thanksgiving for the annual University of Virginia versus Virginia Tech football game which is always played on the Saturday after Thanksgiving. So Joel and I watched Peter Jackson’s The Beatles: Get Back, the eight hour, three part documentary, which takes us back to 1969. The Beatles had a short timeline in January to write new songs that they could perform in a live concert and release in an album. They knew that they were being filmed for a documentary as well. The microphones and cameras were hidden throughout the studio where they were working to create music.
I could not stop watching. The children thought we were crazy watching for all those hours. But who doesn’t love the Beatles? Watching the dynamics of this beloved group and listening to their melodies and lyrics come together made me think about how crucial their music was to me years ago as a teenager. Their music is so familiar and still important to me today.
From my perspective while watching the series, Paul became the leader of the group, trying to keep everyone on task to come up with new material for a surprise short live concert on the rooftop of Apple Corps, their headquarters. He was collaborative yet knew how he wanted things to sound. I got the feeling that although he was seeking feedback from John, George, and Ringo, he really had a vision regarding how the music needed to sound. He wanted the music to sound a certain way -- so maybe he was not listening to the feedback he was soliciting. Ringo was amiable and got along with everyone. When he was needed to be the drummer, he was present for everyone. John seemed to be goofing around a lot. He brought Yoko Ono to the daily songwriting and rehearsal sessions, and habitually arrived late to rehearsal. He later commanded the stage during the roof top performance but did not seem productive during creative song writing sessions. George was on the quiet side and I felt his contributions were valuable yet underutilized. At one point, early on, he quit the Beatles for five days.
After the Beatles broke up, Paul went on to have a happy and long marriage with Linda and a successful career with his new band Paul McCartney and Wings. George went on to produce songs in different genres and collaborated with Eric Clapton and Billy Preston, among others. He had a happy marriage with second wife Olivia. Ringo Starr had a successful solo career and happy marriage with second wife Barbara. And John Lennon devoted the last years of his life to staying at home with his son Sean and Yoko Ono. Maybe they all needed to go their separate ways so that they could all creatively grow and flourish? Still, I couldn’t help but wish that all of the members of the Beatles had reunited before John Lennon’s death.
And I could not help but wonder if mediation could have helped the Beatles to stay together just a little bit longer so that they could have continued to create beautiful music. I would love to go back in time to 1969 and bring my conflict resolution skills to the band. I would facilitate communication and interest-based negotiation between band members. I would empower each member of the band to help make sure that Paul would actively listen to the opinions of all, that George would use his voice and communicate his concerns clearly, that John would come to the studio on time and make meaningful contributions during rehearsals, and that Ringo would feel good about his songwriting skills...
“Blackbird singing in the dead of night. Take these broken wings and learn to fly...”-- Paul McCartney
A: Bringing both parties to the mediation table -- and helping them to understand that mediation works effectively to resolve disputes!
I often will listen to a voicemail or read an email from a prospective client who is desperate for help. I respond by saying that I offer a no charge 15 minute confidential phone consult. That consult is an opportunity for a prospective client to ask questions about what the mediation process looks like and how I work with clients. The consult is also an opportunity for a new client to share with me what he or she wants to tell me about his or her particular dispute. I ask the person who has reached out to me to take a look at my website before our call since the website has a lot of information about mediation. There are two parties to a dispute.
Sometimes, the second person does not want to talk to me because he or she is not ready to consult with a mediator. Often the person who first contacts me is ready to move forward and the second person is not. If the case is a family case, the parties may have tried individual counseling or couples counseling before contacting me. It is never helpful to push the second person to speak to me. I wait until the second person is ready to contact me. Sometimes the second person contacts me that day or within a week and sometimes the second person contacts me a year later.
I’ve had cases where couples have been separated for a long time – even 12 years -- before they both contact me and say that they are ready to divorce. I have also had cases where I get an email that was written at 1 am from a person who is ready to divorce but has not yet told his or her spouse.
When the second person does reach out to me, he or she will ask, “What are the next steps?” I respond by saying that the first step is the no charge confidential phone consult. The next step is for each party to fill out confidential intake forms that gets each party thinking about his/her goals, challenges and fears in mediation. I also send an Agreement to Mediate that spells out what mediation is and how we will work together. Last, I send financial worksheets for each party to fill out regarding bank accounts, investment accounts, retirement accounts, personal property, real property, health and life insurance, vehicles, and credit accounts, among other items.
It is important to mention key mediation concepts to prospective clients during the intake calls so that they understand during the phone consult what to expect, including:
“I like to listen. I have learned a great deal from listening carefully. Most people never listen.” — Ernest Hemingway
A friend sent me this opinion and guest essay written by David Wolpe that was published in the New York Times on September 12, 2021. Wolpe's article resonated with me. Apology and forgiveness are powerful in mediation. Let me know if the essay speaks to you as well:
A friend of mine was publicly canceled. He deserved it and he knew it. He spent a year working with a rabbi and a therapist, during which time he tried to track down those he had hurt and apologize to them, often more than once. We can’t see inside one another’s hearts, but I believe in the sincerity of his change.
What I sometimes wonder — both in my role as a rabbi myself and as a denizen of our broader culture of accountability — is how my friend, or any one of us, can find a path back from shame to acceptance.
To answer the question, I turn to my religious tradition, which is predicated on the perhaps unfashionable belief that people can change. It’s a tenet that is especially on my mind as we approach Yom Kippur, the Day of Atonement, on which Jews fast, pray and ask forgiveness of one another and of God. Not everyone observes this holiday, of course. But in its practices, I believe there is wisdom that can help all of us navigate the sometimes unforgiving nature of our contemporary culture.
There will always be things we cannot fully forgive and people who do not deserve to be restored to good reputation. And forgiving someone does not necessarily mean readmitting that person to your life. In most cases, however, Jewish teachings insist that fair judgment does not require damnation. Judaism, like many other world religions, maintains that human beings are capable of transformation. For example, one of the figures of the Talmud, Resh Lakish, began as a bandit and became one of the greatest rabbis of the age. His conversion was fueled by the belief of another rabbi, Johanan, who saw potential in him. The more we believe in judging by potential, that what people do is not the sum of who they can be, the more likely we are to create a society that can help people move past shame.
Judaism offers a series of ideas and guidelines for how to cope with offense and foster forgiveness. On Yom Kippur, it’s traditional to wear white, not only because white shows the slightest stain, but to remind us of the shrouds in which we will one day be buried. We do not have forever; we must struggle to right our souls now.
If you have caused offense or harm, Yom Kippur does not magically buy you absolution. But the traditions surrounding the day do offer guidance for seeking forgiveness. First, you must apologize to those you’ve hurt, sincerely, as many as three times. The apology should not come weighed down with justification, but rather should acknowledge the other person’s hurt and express sincere regret.
Second, serious, sustained reflection is required to try to change who you are. The Hebrew word for repentance, teshuvah, also means return. To repent is to return to what once was, what became hidden through coarseness or impulse. It is also to return to God and to the community. But slow, careful restoration takes time. The one who is sorry today and expects to stride right back, unblemished, is naïve or conniving.
Third, you must change your ways. The sage Maimonides teaches that one who says to himself, “I’ll sin and then, repent” cannot be forgiven. Sorrow is not a strategy. It is a vulnerability and it is a promise.
And what if you are the one who has been hurt? Jewish tradition urges us to consider why it is so hard to forgive. There is a savage self-righteousness to public shaming. If I forgive you, truly forgive you, then I must restore moral parity; I am no better than you. Accepting that steals the satisfactions of resentment, but it is essential: Jewish law insists that once someone has been forgiven, you must never remind the person of that fact. To do so is to re-establish a hierarchy that true forgiveness disavows.
To forgive also forswears vengeance. When I have been hurt, I wish to see you hurt. There is both a personal and an abstract desire for justice: People who do bad things should be punished, and especially people who do bad things to me. We rarely admit to ourselves how often this desire to punish wrongdoing is a personal impulse in moralistic clothing.
It’s also worth noting that anger at others, even when merited, can be personally destructive. In the Bible, the words “You shall love your neighbor as yourself” (Lev. 19:18) are preceded by “you shall not bear a grudge.” As has been aptly said, to bear a grudge is to drink poison hoping the other person will die. It gnaws away at us, embittering the life of the hater. Forgiving your neighbors is one way of loving them, and learning to love yourself.
Public shame is a powerful and sometimes necessary punishment. In the case of my friend, it made him realize that the trigger for his anger was in him, not in the conduct of others. But it can also be brutal, and I believe that too often, lifetimes are remembered by their worst moments, and complex personalities reduced to their basest elements.
On Yom Kippur, as Jews all over the world confess our sins, we will beat our chests, a sort of spiritual defibrillator to get our hearts beating anew. The liturgy asks of the “court on high” permission to pray with those who sin.
And who among us is exempt from that group? I stand each year with a congregation of people who have hurt one another, families and friends and strangers and co-workers. Like my friend, all of us seek to be forgiven — for we are imperfect and striving and in need of love.
David Wolpe is the senior rabbi at Sinai Temple in Los Angeles and the author of “David: The Divided Heart.”
I am hoping that you would be willing to take a few minutes to vote for me in the Best of Arlington 2022 survey. Voting began on August 9th and closes on September 10th.
Arlington Magazine has included Mediator in its survey for Best of 2022. Thanks to your votes and your support, Little Falls Mediation won this category both times it was offered, in 2018 and 2020.
It is super important to me that I win for the third time, as winning Best Mediator greatly helps my small business to succeed and also helps prospective clients in need of mediation services to find me.
Anyone can vote as long as you give your name and email address, and vote in at least 5 categories. The survey is a write-in vote and not a check box.
Best of the Rest -- Mediator, Ellice Halpern, Little Falls Mediation
While I am not allowed to advise with regard to other businesses to vote for, I can provide the names of businesses in each category with which you might be familiar in the event you would like to support them:
Thank you so much for taking the time to vote for me. Your support over the years is greatly appreciated.
Click here to vote.
In negotiation, the two parties to the dispute are empowered: they have maximum control over the process and over the outcome.
Interest-Based Negotiation: William Ury and Roger Fisher talk about interest-based (also known as principled), or cooperative negotiation in their book Getting to Yes as a better way of reaching good agreements. This process can be used effectively on almost any type of conflict, whether the conflict is business or family related. The concept focuses on four points:
So interest-based negotiation involves trying to understand the other person’s viewpoint, actively listening to the other party, and thinking of each other as partners in negotiation rather than as adversaries. Explain your interests clearly and ask why the party holds the positions he or she does. Discuss these interests together looking forward to the desired solution rather than focusing on past events. Focus on shared interests. To invent options for mutual gain, brainstorm all possible solutions to the problem and then evaluate the ideas. Ask questions and reality test. And when interests are directly opposed, the parties should use objective criteria to resolve their differences.
Fisher and Ury also talk about having a BATNA at hand – the Best Alternative to a Negotiated Agreement. If negotiations fail, what do you do? The BATNA is the alternative course of action and the plan you are willing to execute if an agreement cannot be reached. Your BATNA gives you power while you are negotiating.
Positional Negotiation: Competitive or positional negotiation assumes that the purpose of bargaining is to obtain the best possible economic result, usually at the expense of the other side. The goal is to pay as little as possible if you are the defendant or to obtain as much as possible if you are the plaintiff. Negotiation is viewed as similar to litigation – someone must win and someone must lose.
The adversarial negotiation approach is a more aggressive competitive model. This approach may involve tactics such as: providing the other side with distorted facts that are beneficial to the competitor, asking for way more than you expect to get, using threats and ultimatums, applying time pressure, never saying yes to a first offer, flinching at proposals, withdrawing an offer, and using a decoy to draw attention away from the real issue. Theatrics are involved here.
What is wrong with positional negotiation? It does not tend to produce good results because the agreements reached tend to neglect the other party’s respective interests. Negotiators tend to focus on trying to “win” at the expense of generating better, long-lasting agreements and relationships.
Happy summer everyone! In the last six weeks four out of five of our kids graduated – two from college on May 1 and May 16, one from graduate school on May 6, and one from high school on June 15.
One graduation was virtual and we watched online, one was outside on a rainy and dreary day, one was inside and we wore masks, and one was held outside on a beautiful June evening. While our graduates were limited as to how many family members could attend graduation events, they were overjoyed to have graduations at all.
It is safe to say that all of our graduates are in a period of transition. Two are interviewing for jobs that are the right fit, one started working in northern Virginia at his first job out of college, and one is working two summer jobs while he prepares to enter college away from home. One child is moving to the Southwest and one child may be moving from a beautiful mountain state back East. We are going through our own changes as parents as well. I cannot imagine what life will look like in mid-August when our youngest packs up and moves into his dorm room – and then we drive away.
Feelings before and after graduation are complex. Students feel happiness and joy and a strong sense of accomplishment and pride. Yet they also feel anxious, fearful, grief, loss, sadness, and uncertainty. Graduations – and transitions -- are bittersweet.
To our Class of 2021 graduates: build resilience, stay positive, be empowered to live your life and, as John Legend told the Duke University Class of 2021, “Love should be your North Star. Let it guide you.”
I wanted to share the short piece that I contributed to the recent book created and edited by Michael Lang and Peter Nicholson. The name of the book is Family Conflict During A Pandemic: Stories of Struggle and Hope. It was published in May of 2021. The book is a follow up to the first book Michael and Peter created a year ago entitled Living Together, Separating, Divorcing: Surviving During A Pandemic. It has been wonderful to get to know Michael and Peter over the past year. Over 90 mediators and professionals from around the world contributed to the most recent book.
Courtney and Andrew met in college over two years ago. She is presently a senior at Colorado College and from Arlington, Virginia. He graduated from Colorado College in May of 2020 and is now living in Juneau, Alaska with his parents. They met when they were both studying abroad during college.
They started quarantining together during Courtney’s junior year in the Spring of 2020 when the pandemic first hit. Since only seniors can live off of campus, Courtney moved from her on campus dorm room into Andrew’s off campus house with his roommates and a girlfriend. Courtney says that Andrew has always had serious OCD issues, severe anxiety, and health concerns. The pandemic magnified these mental health concerns. Andrew also had no health insurance between January and June. Quarantining together was difficult, in part because Andrew was adamant that no one was to ever leave the house during that spring. He feared that going for a walk outside could result in death.
Andrew moved back home to Juneau after graduation in May of 2020. Courtney spent the summer in Arlington working two summer jobs. They kept in touch via texts, phone calls, and pre-arranged Face Time calls due to the four hour time difference. In October, Courtney went to visit Andrew and his parents after five months apart. She said that it was crippling to be apart from each other for so long. Courtney flew from Colorado Springs to Juneau and quarantined alone in the basement of the small family home for a week while trying to do online schoolwork with an unreliable wi-fi connection. She said that she could not even send emails or use Zoom due to internet issues.
Staying alone in the basement with no social interaction and no physical touch was brutal. Andrew and his parents stayed upstairs during the quarantine week. Courtney took three Covid tests at Andrew’s insistence. Juneau in the fall is cold and dark – the sun rises between 8:30 and 9:00 and sets around 4:00 p.m. After quarantine, Courtney and Andrew stayed in, cooked meals with his parents, took walks, went out for groceries, and slept at night in Andrew’s twin bed. Courtney longed for pre-pandemic normalcy where they could have gone skiing and hiking, spent time outdoors, had dinner with friends, socialized at coffee shops and bars, and spent time studying at the local library.
They spent the holidays apart. Courtney spent 20 hours flying from Arlington to Los Angeles to Seattle to Ketchikan to Juneau on January 27, 2021. She wore three masks on the plane and felt claustrophobic from the difficulty of breathing with all those masks in place. She says she has acne from the masks. She was afraid to remove her mask and eat on the plane, so she did not because others were snacking throughout the flights with their masks off. When she finally arrived late Wednesday night, Courtney felt awkward. She was desperate to touch Andrew but there was no hug, no kiss, no touch. Her expectations were set, though, from the October trip. She said it is pure torture to see Andrew in front of her but she can’t even see his face since it is covered by the mask.
Courtney went immediately down to the basement upon arrival into the house, and this time said she had to go crazy and yell at Andrew that he must come down to the basement with her for her quarantine week. He reluctantly relented and in turn, insisted that she wear a mask if his dog came down into the basement. His anxiety always goes through the roof right before she visits and when she first arrives due to his fear of getting Covid. It is hard for him to accept Courtney’s presence.
Andrew works for the state of Alaska, and Courtney has her thesis to complete. They will be working from home along with Andrew’s mom; Andrew’s dad is retired. Andrew’s parents are always in the house. Sunset is around 2:00 pm in January and the weather is cold and dark most days. Flooding is a concern in southeast Alaska and Andrew’s house has flooded several times.
Courtney says that pandemic life is hard wherever you are. She is an extrovert so the lack of social interaction is tough. She and Andrew have each other. The weather is too cold right now to spend time outdoors. She says that as hard as pandemic life is right now in Juneau, she made the journey because she is in a relationship with him and because he refuses to fly due to his severe pandemic anxiety. She says that she does love the beauty of Juneau. She plans on spending four to six weeks in Juneau and then will fly back to Colorado Springs to finish her senior year at the end of February.
Yesterday I taught my last Mediation class of the semester at George Mason University’s Scalia Law School. Karen Leichtnam joined us to discuss mediator ethics. Karen worked at Multi-Door Dispute Resolution in D.C. Courts for many years before retiring in 2020, and she held the positions of Civil ADR Branch Chief and Mediation Training Manager, among others. Karen hired me to be a mediator in D.C. Courts back in 2010. I’ve participated in many of Karen’s ethics training classes over the years at Multi-Door since mediators are required to be re-certified every two years by the Virginia Supreme Court – which includes completing ethics training every two years.
Karen reviewed key components of the Model Standards of Conduct for Mediators with my students:
1. Self-Determination: A mediator shall conduct a mediation based on the principle of party self-determination. Self-determination is the act of coming to a voluntary, uncoerced decision in which each party make free and informed choices as to process and outcome.
2. Impartiality: A mediator shall conduct a mediation in an impartial manner and avoid conduct that gives the appearance of partiality.
3. Conflicts of Interest: A mediator shall avoid a conflict of interest or the appearance of a conflict of interest during and after a mediation.
4. Competence: A mediator shall mediate only when the mediator has the necessary competence to satisfy the reasonable expectations of the parties.
5. Confidentiality: A mediator shall maintain the confidentiality of all information obtained by the mediator in mediation unless otherwise agreed to by the parties or required by applicable law.
6. Quality of the process: A mediator shall conduct a mediation in accordance with these standards and in a manner that promotes diligence, timeliness, safety, presence of the appropriate participants, party participation, procedural fairness, party competency, and mutual respect among all participants.
7. Advertising and Solicitation: A mediation shall be truthful and not misleading when advertising, soliciting, or otherwise communicating the mediator’s qualifications, experience, services, and fees.
8. Fees and Other Charges: A mediator shall provide each party or each party’s representative true and complete information about mediation fees, expenses, and any other actual or potential charges that may be incurred in connection with a mediation.
9. Advance of Mediation Practice: A mediator should act in a manner that advances the practice of mediation.
Ethical issues often arise in the mediation setting. What behaviors are right or wrong/proper or improper in mediation? Karen presented various ethical conflict scenarios to my students for discussion:
It's always sad to end the semester and to say goodbye to my students. "Every ending is a new beginning." -- Marianne Williamson
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.