The year ended on a wonderful note. Thank you so much to all of you who voted for Little Falls Mediation in Arlington Magazine's Best of 2018 survey. I am really happy to share that Little Falls Mediation was the Best of Arlington 2018 winner for Best Mediator! Above is the brief paragraph and photo that appear in the January/February 2018 issue of Arlington Magazine.
It has been an honor and a privilege to work with all of my wonderful clients this year. I work with people and families who are going through very stressful periods. Mediation empowers them to collaborate with each other, to brainstorm solutions to the problems they are facing, and to reality test how those proposed ideas might work. The devil is in the details.
I taught my first law school class, Alternative Dispute Resolution, with my colleague Renee Reynolds and had a lot of fun trying something new. I have to admit that I was a little bit terrified before that first class, but the fear quickly vanished as soon as I met my students. We covered the subjects of mediation, negotiation, arbitration, and collaborative law in our course. Our students went to Multi-Door Dispute Resolution in D.C. Superior Court to observe real mediations taking place in the Small Claims Division. They engaged in lots of classroom exercises and role plays. They listened to our fabulous guest speakers who included collaborative lawyer Jennifer Bradley, Judge Paul Sheridan, attorneys Karen Keyes and David Ginsberg, and long time family law attorney and mediator Larry Gaughan. I'm happy to report that Renee and I will be back at the Scalia Law School at George Mason University in Arlington in January, teaching a Mediation class for the spring semester.
Happy Chanukah, Merry Christmas, and Happy New Year!
"For last year's words belong to last year's language
And next year's words await another voice.
And to make an end is to make a beginning." -- T.S. Eliot
“Past and Present I know well; each is a friend and sometimes an enemy to me. But it is the quiet, beckoning Future, an absolute stranger, with whom I have fallen madly in love.”
-- Richelle E. Goodrich
I picked up the phone the other day to speak to a potential new client, and she cried, 'I'm panicked!" She had left her career to be a stay at home mom of three small children, the couple had been talking about divorce for a while, and the husband is the primary breadwinner. I mediated a case yesterday in which the husband was the stay at home dad and the wife is the primary source of income for the family. He is nervous about his financial future but moving forward with hope.
All of my clients are apprehensive and scared of the changes that a divorce will bring. These tips will focus on financial concerns when a couple is facing divorce. Often only 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.
1. Assemble a good team of advisors -- Find a good certified financial planner, preferably with experience in financial planning surrounding divorce. Financial planners help to assess every aspect of your financial life -- including saving, investments, insurance, taxes, retirement, and estate planning -- and help you develop a detailed strategy or financial plan for meeting all of your financial goals. You will also need to find a neutral mediator if you are mediating your divorce and a lawyer to review any agreement that you may reach and with whom to consult during your divorce negotiations, You may also need to consult with an accountant, a tax advisor, a business valuator if either party owns a business, a real estate appraiser, a therapist, a parenting coordinator if there are children, and a retirement expert.
2. 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 statements, joint retirement and bank accounts, 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.
It's important to understand what all of your specific monthly expenses are so that you know what monthly income you will need for the future. You will want to create a budget for future income and expenses. Save your receipts and track all of your monthly expenses with an easy to use money management program such as Quicken or Mint.
3. Update insurance and beneficiaries -- if you have health insurance coverage through your spouse's plan, you will need to investigate new coverage options and change to a different health insurance plan once you are divorced. Contact a health insurance broker if employer-based health insurance is not an option. A broker can help explain different benefit packages and costs. Review and update beneficiaries on your various insurance policies and financial accounts, as well as who has legal authority to make health care decisions for you on your medical proxy document. If you had joint car, valuable articles, and liability insurance or any other joint insurance policies, set up your own separate insurance policies in your own name. Update your will.
4. Hold off on major financial decisions for now -- Don't make impulsive large financial purchases, switch jobs, or move to a different geographic location at this time.
5. Review and monitor your credit report and check your credit score -- Close your joint bank accounts and open accounts in your own name. You don't want to be responsible for the spending and debt of your spouse once you've decided to divorce. Obtain a new credit card account in your own name. Protect your credit score.
"Deciding not to decide is, of course, among the most important things done by the Supreme Court. It takes a lot of doing, but it can be done." -- Thurgood Marshall
This morning was a beautiful and meaningful one for me -- I was admitted to the U.S. Supreme Court Bar by Justice Samuel Alito. It was nice to chat with him. I took some time after the swearing-in ceremony that took place in one distinguished room, and the reception that took place in another, to wander around the white marble hallways and to take in the beauty and atmosphere of the historic building.
Sitting outside on the stone terrace outside of the reception room, I remembered a time when my father was in town for a dinner at the Supreme Court. He invited me and my oldest daughter to join him. She was then in middle school. As we watched Justices Scalia, Breyer, and Kennedy mingle at the dinner, I mentioned to her that she should introduce herself to them. After all, it wasn't clear if she would ever have this kind of opportunity again. She did, and they were quite engaged in talking with her. Later, we watched Justice Ginsburg slip quietly away from the dinner and walk alone toward her office. We peeked into the courtroom and marvelled at its small, intimate size. We felt that we were part of history.
Today I felt like I was a tourist in my own town. It felt good to be back on Capitol Hill. Years ago, I used to work in the Senate Hart Office Building next door to the Supreme Court, and I walked by the Court every day. I did not take that experience for granted, but I was not prepared for the rush of emotion I felt today in looking at the magnificent columns and steps and the words "Equal Justice Under Law" engraved on the front of the building.
Many thanks to the warm and welcoming George Mason law school community -- and to Judy Jin at the law school -- who invited me to join in on the group admission during alumni weekend even though I graduated from Georgetown University Law Center. I am grateful and appreciative to be part of this wonderful community as an Adjunct Professor of Law!
My colleague and friend Renee Reynolds and I presented a seminar during the Virginia Mediation Network (VMN) conference at the University of Richmond School of law over the past weekend. Our presentation focused on managing emotions in mediation. We discussed the importance of (1) understanding grief, anger, fear, and loss in mediation, (2) how to recognize and decode emotion, (3) why a mediator should address emotions, (4) how to validate emotions, and (5) steps mediators can take to move past impasse when emotional issues seem to be a factor. Issues and emotions must be addressed in mediation.
As family and divorce mediators, our clients often come to see us feeling a wide range of emotions including disappointment, helplessness, grief, anger, outrage, sadness, and betrayal. Many emotions are about unresolved issues of the heart, and many conflicts are about relationships. Emotions influence all of our decisions -- what concessions a person will make during negotiations, when a person will make concessions, whether he or she will continue to negotiate or settle, how he or she will push the other party, how the other person will react when pushed. People in conflict have a full range of emotions that vary in intensity during mediation, and over time, parties become less able to communicate, more polarized, and less able to resolve their conflict.
In our session, we talked about the publication "Grief, Anger, and Fear in Mediation" written by lawyers and mediators Joe and Susan Epstein. The article discusses how mediators can help untie the knot of emotion and stated in pertinent part:
"...Being attuned to the presence and addressing the key emotions of grief, anger, and fear as they arise in the context of mediation...is more often than not the key to successful mediations. Commentators in the field of mediation often address the motivations, underlying interests, and needs of the parties involved in conflict. Skillful mediators search for and address these factors during the course of mediation. Nonetheless, commentators, mediators, and negotiators tend to overlook the emotionally powerful issues of grief, anger, and fear. Acknowledgement of emotional factors empowers parties, creates a legitimate sense of control and fairness, and creates the opportunity to restore, preserve, or enhance relationships. In short, by addressing emotions, mediators and negotiators will unlock the door to key motivations, interests, and needs facing parties..."
As mediators, we help resolve conflict by identifying common goals, engaging the parties in cooperation, and focusing on the substance of the dispute. We also use tools to address issues and emotions in mediation such as paraphrasing, reframing, validating, summarizing, and asking open ended questions. In particular, we validate by (1) noticing the presence of emotion, (2) being present and giving all of our attention to the person who is speaking, and (3) acknowledging and naming the emotion. Too often, attorneys and negotiators are uncomfortable with addressing emotion in a mediation room and choose to simply ignore it.
It was an honor to present this subject at the conference, and it was great to talk to, exchange ideas with, and learn from attorneys and mediators from all over the state of Virginia. We are looking forward to the next VMN event!
In a couple of recent mediations, the issue of dating has come up, and my clients asked me to do a blog post on dating after divorce. Here it is:
1. Take plenty of time to grieve the end of your marriage and to heal. How long this process will take will vary from person to person. Take an indefinite period to think about and to process what happened in your marriage. Think about what you want and do not want in the next relationship, Do what you love to do and explore life on your own terms. Date yourself. Spend time with people who make you laugh and inspire you.
2. Be optimistic and open about the idea of love. There is no room for negative thinking or self doubt. You are more resilient than you think you are. Reframe the notion of dating as a way to meet new people, network, and get out of your comfort zone. Go to groups and events where you can meet people who have similar interests.
3. If you are a candidate for spousal support, hold off on dating until your divorce is final. You could be barred from receiving any spousal support or alimony under the Virginia statute which provides in part that adultery (which would include post separation sex) is a bar to alimony -- unless you can show that manifest injustice would result.
4. You might want to try online dating. When you are ready to date, there are lots of different dating websites, and online dating may be a good way to go out and meet new people.
5. Make time for yourself. Many of us are busy navigating the daily challenges of working, grocery shopping, preparing meals, trying to exercise, and driving carpools to kids' sports and activities, among many other duties, responsibilities and worries. Schedule time for some fun for yourself too. If you have kids, a happy parent often means happy children.
I just returned from an incredible trip to Yosemite, Sequoia, and Kings Canyon National Parks and was overwhelmed with the sheer beauty and majesty of these parks. As Ansel Adams said in describing Yosemite, “It is all very beautiful and magical here – a quality which cannot be described. You have to live it and breath it, let the sun bake it into you.“
While getting ready for my trip, I was reminded of the ongoing dispute between Delaware North and Yosemite National Park. Delaware North is a Buffalo based company that supplied park concessions -- providing food and lodging and running the gift shops and recreational activities -- at Yosemite starting in 1993. Delaware North at that time took over the concessions contract from the Curry Company which had been in charge of concessions for 94 years prior to 1993. But in early 2016, Delaware North lost its concessions contract when Yosemite awarded a 15 year concessions contract worth about $2 billion to competitor Aramark. Delaware North still provides concessions to Sequoia and Kings Canyon National Parks nearby, and to Shenandoah National Park in Virginia, among other parks and entities.
Delaware North is not seeking to overturn the decision to award the contract to Aramark. Instead, Delaware North is seeking ownership and over $50 million for its trademarks, trade names, and other intellectual property. According to Delaware North, the contract originally signed in 1993 stated that the company was required to purchase both tangible (buildings and equipment) and intangible assets from the previous vendors, Curry Company, for $61.5 million -- and that whoever succeeded them would also have to purchase the intellectual property which included the trademarks.
Delaware North had trademarked the names of various accommodations within Yosemite owned by the National Park Service (NPS), such as the well known Ahwahnee Hotel, a National Historic Landmark, Curry Village, a grouping of cabins, and Yosemite Lodge. The company had also trademarked ski slopes, the famous Half Dome image, and the words Yosemite National Park as the phrase appears on t-shirts, pens, and mugs.
So the NPS decided to change the famous names that are at issue -- now the Ahwahnee is known as the Majestic Hotel, Curry Village is called Half Dome Village, and Yosemite Lodge has been renamed Yosemite Valley Lodge. The Wawona Hotel, also a historic landmark, is now Big Trees Lodge, and Badger Pass Ski Area is now Yosemite Ski and Snowboard Area.
The NPS is currently in litigation over these trademarks and other intellectual property rather than pay Delaware North or require Aramark to purchase the trademarks. NPS also values the intangible property at far less than the $50 million Delaware North is requesting -- and more like $3.5 million or less. From NPS's perspective, Delaware North accumulated the trademarks over the years the company held the contract and is now demanding that the park pay an unreasonable amount of money to get them back. Some people think: shouldn't these trademarks belong to the park and to the public and not a private, extremely profitable company? Others believe that Delaware North is engaging in extortion. It should be noted that concessionaires are required to pay a portion of their profits back to the national parks for the right to run their businesses in the parks.
I love our national parks and I have fond memories of the Jacobs family who owns Delaware North. I grew up in Buffalo and went to school with the beautiful, smart, and kind Lisann Jacobs, one of the Jacobs family kids, from kindergarten through high school. I'll be interested to see how negotiations in this dispute progress and am hopeful that an agreement is reached shortly.
While exploring these beautiful parks, I often thought of John Muir who said that "in every walk with nature one receives far more than he seeks." He was filled with joy as he experienced the simple beauty of nature in his beloved national parks, and he noted that "everybody needs beauty as well as bread, places to play in and pray in, where nature may heal and give strength to body and soul."
I will be teaching a course on Alternative Dispute Resolution (ADR), along with my colleague Renee Kostick Reynolds, as Adjunct Professor starting in August for the 2017
Fall semester at George Mason Antonin Scalia law school. The class will cover topics that include: an overview of the dispute resolution process, negotiation, mediation, arbitration, and collaborative law.
We are hoping to include dynamic guest lecturers with whom we regularly work and who have years of experience in these practice areas. We are looking forward to making this ADR class interactive and enjoyable with lots of classroom exercises, role plays, learning by doing, experiential learning, discussion, and writing!
My colleague Renee Reynolds and I are thrilled to be speaking at the Virginia Mediation Network fall conference in September at the University of Richmond School of Law. Renee and I will be talking about managing emotions in mediation. We will cover topics such as recognizing and decoding emotions, the importance of understanding reactions to grief, why a mediator should validate and address emotions in mediation, and how to move past impasse when emotional issues seem to be at play. Hope to see you there!
William Ury is one of the world's leading experts on negotiation and mediation. He is the co-founder of Harvard's Program on Negotiation. And he is the author of Getting to Yes, the world's best selling book on negotiation. Listen to his Ted Talk on The Power of Listening at the link below.
Ury talks about why it is so important to listen in any negotiation or conflict:
He asks: So if listening is so useful, why isn’t everyone doing it? "The real problem is that there is so much going on in our minds, so much noise and distraction that we don’t have the mental and emotional space to be able to truly listen to the other side."
He says: if we listened more, what difference would it make in the world? "I believe it would make a huge difference. In the course of my mediation work, I personally witnessed the enormous cost of conflict, the broken relationships, the broken families, the stressed out workplaces, the ruinous lawsuits, and the senseless wars. What always strikes me is the biggest opportunity that we have actually, is to prevent these conflicts even before they start. How do we do that? It’s not easy, but it almost always starts with one simple step. Listening."
Many people ask me what I do as a mediator and why I became a mediator after working as a lawyer. Once, at the conclusion of a court referred case that ended well, the defendant told me she could never be a mediator and wondered why I enjoyed conflict resolution. Others want to know how the mediation process works. And recently, I was asked: how do I find the right mediator? Here is what I advise:
1. Find a mediator who has these qualities, among others:
• Good listening and communication skills
• Focus and concentration
• Empathy and compassion
• Ability to maintain neutrality
• Patience and perseverence
• Ability to establish rapport and gain trust
2. Make sure your mediator complies with state certification requirements
Some states such as Virginia require that mediators participate in classroom training, co-mediate cases with a mediator mentor, and then mediate cases on their own while they are observed and critiqued by a mentor. Mentors evaluate mediators in training who then apply for state certification. Mediators need to be initially certified by the Virginia Supreme Court to mediate court referred cases and re-certified every two years after proving that they have completed a number of credits of continuing mediator education and mediated a certain number of cases per two year term.
3. Interview several mediators
Ask: What is your mediation style -- facilitative, evaluative, transformative? How much experience do you have? How many cases have you mediated? What type of training did you complete? Do you participate in continuing mediator education? What is your educational and professional background? What type of cases do you handle? How do your written agreements reflect the decisions made in mediation? How do you typically work with your clients? What do you charge for professional services?
4. Is the mediator committed to the field of mediation and involved in the mediation community?
Or is the mediator you find also committed to practicing law and litigating?
5. How does the mediator problem solve and trouble shoot?
Does the mediator use a clear and practical approach in helping to find solutions to identified issues? Does the mediator empower the parties to work collaboratively to resolve the identified problems? Does the mediator validate feelings when emotions are running high or ignore them? Is the mediator committed to doing what is in the best interest of all parties?
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.