Recently, I was online and saw a post in a family mediator group from a fellow mediator who I did not know -- Michael Lang from Sarasota, Florida. He mentioned something about pulling together a book to help people who are struggling during this COVID-19 pandemic. He felt strongly that worries are felt very intensely in families where couples are separating and divorcing. I replied to the post that I would be happy to help out, having no idea that Michael and his colleague Peter Nicholson, advertising and marketing CEO of OGX group in Ireland, intended to publish the book from start to finish in a week!
I sent Michael a few articles that I had recently written, and he wanted to include Five Financial Tips When You Are Facing Divorce because he thought that no other mediator was including a written piece on a similar topic. He also thought that concrete tips would be most helpful to families.
Michael and Peter’s goal was to produce the book to help families coping with great difficulties immediately. Over a one week period, Michael and Peter (1) reached out to mediators, lawyers, therapists, financial planners, and child specialists from around the world, (2) received articles, (3) asked for changes, (4) formatted, (5) illustrated, (6) solved challenging technical issues, and (7) produced the book. The book is now available in hard copy on Amazon and in kindle version. My book just arrived today, and I can’t wait to read all of the various pieces representing the collective wisdom and guidance of this experienced group of contributors.
A wonderful and unexpected byproduct of this book is that a new supportive and collaborative community has been born: mediators and other professionals contributed to the book from all over the U.S., as well as from Ireland, Australia, Italy, the UK, Poland, Canada, Trinidad, Czech Republic, and South Africa. We are all now connected by email and social media and in touch with each other. Thank you, Peter and Michael, for bringing us all together.
Here is the article:
Five Financial Tips When You Are Facing Divorce
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 divorce financial analyst (CDFA). Financial analysts help to assess every aspect of your financial life -- including savings, investments, insurance, taxes, and retirement -- and help you develop a detailed strategy or financial plan for meeting all of your financial goals. Your CDFA may also be skilled in advising you on business valuation if either party owns a business or on financial forensics. Sometimes my clients together hire a divorce financial neutral who works collaboratively with them during the process of mediation.
You will 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 real estate appraiser, a therapist, and a parenting coordinator if there are children.
Worried about how to pay for a team of advisors? Ask for a no charge consult before you commit to working with and paying a CDFA, mediator, lawyer, accountant, and/or therapist. You want to make sure that all of the advisors who you are hiring will be a good fit and will be affordable. Negotiate sharing the cost of your neutral mediator, divorce financial neutral, and real estate appraiser with your former spouse. And if you do not have the financial resources to hire a CDFA or similar advisor, do not worry. Many couples do not have a complex financial situation that might benefit from and require a financial analysis. A neutral mediator will help to empower the divorcing couple to negotiate splitting of assets and liabilities without hiring a financial analyst. Moreover, health insurance will cover much of the cost of a therapist and/or parenting coordinator, if needed.
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. (You may need to consult with a lawyer who specializes in wills, trusts, and estate planning.)
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.
When I was a teenager, my favorite book was All But My Life, written by Gerda Weissman Klein. Gerda is a Holocaust survivor who for many years lived in Buffalo, where I grew up, with her family. One of Gerda’s daughters, Vivian, was my Sunday school teacher. Gerda, throughout my life, has always been my hero because she radiates strength, hope, optimism, resilience, and love.
I remember my mother, who died in 1992 at age 55, telling me Gerda’s story as well since they were friends. I could not wait to meet Gerda’s husband and great love, Kurt, who I pictured as a young, handsome soldier -- and one day, I did.
Gerda spoke to my high school classmates and me in the 1970s and shared her story about her parents and her brother and life after the Germans invaded her hometown in Poland when she was 15 years old in 1939. Flash forward to many years later, maybe around 2004, and my oldest daughter did not want to go to Sunday school in northern Virginia. I happened to be at our temple and walked into the temple library with her where I saw All But My Life – my book that had been so special to me and that I had not thought of in years.
My daughter and I read the book together, and I decided to get in touch with Gerda and invite her to speak at our temple. She had written several newer books – including The Hours After, Letters of Love and Longing in War’s Aftermath and A Boring Evening at Home. It turned out that Gerda’s son James lives in Potomac, Maryland. We were able to arrange for Gerda to fly from Arizona to the East Coast, stay with her son, and I would pick her up and bring her to the temple in Falls Church. Gerda spoke to the northern Virginia community in two sessions – one presentation for children and another for teens and adults.
Later, when I was traveling to Phoenix with my three kids, Gerda invited us to visit with her in her home and we had a wonderful time. Then, in 2008, I was watching the Academy Awards and there was my Gerda up on the podium accepting an Oscar for her story that was told in the documentary One Survivor Remembers. You can see her remarks here: https://www.youtube.com/watch?v=5zn-fPM4KS0. The film also won an Emmy.
In 2011, I opened up the Washington Post to see that Gerda had been honored with the Presidential Medal of Freedom, the highest civilian award in the U.S. The award recognizes people who have made "an especially meritorious contribution to the security or national interests of the United States, world peace, cultural or other significant public or private endeavors".
In her talks to various audiences around the world, Gerda described hiding in her basement, living in a Jewish ghetto, and being separated first from her brother and then from her parents in 1942. The last words her mother spoke to her were, “Be strong”. Her father told her to wear her ski boots – in June – when the family was separated from each other. She never saw her family again. Gerda was taken to various slave labor and concentration camps and endured unspeakable horrors. She hid pictures of her family in her ski boots, which she wore on a forced 350 mile death march from Germany to Czechoslavakia through the snow and cold in 1945. Of 2000 Jewish women who were forced to march, just 120 survived.
I remember Gerda telling the story of her best friend Ilse, “Ilse, a childhood friend of mine, once found a raspberry in the concentration camp and carried it in her pocket all day to present to me that night on a leaf. Imagine a world in which your entire possession is one raspberry and you give it to your friend.” Ilse did not survive the death march and died just a few days before liberation.
At the end of the war and the death march, Gerda and the other surviving girls were left by the Nazis in an old abandoned bicycle factory along with a bomb that was set to detonate but somehow did not. Kurt Klein found Gerda. Kurt was an American who had been born in Germany and had emigrated to the U.S., settling in Buffalo, N.Y. in 1937 at age 17 without his parents -- who were unable to leave Germany and died in Auschwitz. Kurt joined the U.S. Army and was trained in military intelligence. Kurt describes the moment he met Gerda:
…I saw a girl standing and I decided to go, walk up to her…I asked about her companions… And we went inside the factory...There were women scattered over the floor on scraps of straw…some of them quite obviously with the mark of death on their faces…The girl who was my guide made sort of a sweeping gesture over this scene of devastation, and said the following words: "Noble be man, merciful and good." And I could hardly believe that she was able to summon a poem by the German poet Goethe, which…is called "The Divine," at such a moment. And there was nothing that she could have said that would have underscored the grim irony of the situation better than…what she did. And it was a totally shattering experience for me.
Gerda describes the moment she met Kurt: “He looked to me like a god…” Nervously, before asking for help, she apprised him of what had been a dangerous truth. “You know, we are Jews,” she told him…He paused, then said, “So am I.” Gerda and Kurt were engaged four months later and married the following year.
The other day, I saw an article in the Arizona Republic about Gerda. The headline stated: 96 year old Phoenix Holocaust Survivor Becomes Beacon of Hope During Covid-19 Crisis. As she always does, Gerda provided words of hope and comfort. Quoting from the article:
"If we have hope even in the darkest moments, I think it's the most important weapon," Klein said. 'We all have an incredible amount of strength that we are not familiar with until we are really tested."
"Even in the most difficult times, you have to have hope. Hope is the light to the future, to everything,"
She said it's important not to let one's mind wander into the dark doubting corners of fear. "I think we should always have hope and never give into the frightening thoughts," Klein said. "We always have the 'what ifs.' Well, what if we have incredible strength?"
"Ten years from now, you will look at it entirely different. You'll think, 'Things were really tough then, but how fortunate that I am now that that all belongs to the past,'" Klein said.
Sadly, Kurt died at age 81 in 2002 while on a lecture tour in Guatemala with Gerda. Gerda’s son James talks about his dad's death in the forward to Gerda’s book A Boring Evening at Home: “...in tribute to Dad, who believed in both the vital importance of their life’s work as well as Mom’s unique ability to convey eloquently their message of tolerance, hope, and the redemptive power of love, Mom has somehow mustered the strength to go on…” James also talks about his belief that his parents’ greatest achievement was to create a normal life for themselves and their children and a home in which the family all genuinely had a lot of fun and spent a lot of time laughing.
I find Gerda's words, as always, to be encouraging and helpful to me during this pandemic. I hope you find comfort in her words as well.
Sources: Chicago Tribune, April 30, 1995, Arizona Republic, April 11, 2020
Photo: From the Gerda and Kurt Klein Foundation
It’s hard to believe that four weeks ago I was getting ready for a mother/son college trip to Austin with my high school junior and youngest child John, his classmate and friend Ethan, and his friend’s mom Adrienne. We had planned and looked forward to the trip for a long time. After I taught my law school class, we left from Reagan airport on the afternoon of Wednesday, March 4th, checked into our Airbnb apartments located in the South Congress area of Austin, and celebrated Ethan’s 17th birthday that night over a late night dinner at Magnolia Cafe. The next morning, a Thursday, we were up bright and early for a tour of the campus at UT Austin. We had an amazing tour guide and wonderful conversations with film professors and staff in the Department of Radio-Television-Film, as well as with the Director of the School of Journalism. The weather was perfect with blue sky and sunshine. Everyone we met was warm and welcoming.
After our day on campus, we had a fabulous dinner at Loro Austin, an Asian smokehouse and bar. Later that night, when we were back at our Airbnb, my friend Brenda back home in Arlington texted me the following: “3 cases of corona virus in Montgomery County. Hold on tight…here we go…” I felt a twinge of anxiety as I started getting ready for bed and tried to get some rest so that it didn’t morph into a full blown panic attack.
The next morning, a Friday, I decided to get up early and walk around South Congress. It was another beautiful warm day in Austin and no one was up and about yet. I walked over to the TOMS shoe store and coffee shop that had hanging lights, a patio with tables and chairs and a couple cozy porch swings on their covered porch. I ordered a hot chocolate and a banana bread -- and soon Adrienne joined me and then the boys did too. As we were walking around the area, I received a notification that the annual and renowned film, media, music and tech conference, SXSW, (or as they say in Austin, South By) that was to begin on March 13th and end on the 22nd was canceled. I felt that twinge of anxiety resurface on this happy and relaxing day. We had two more incredible meals that day in Austin -- a picnic outside enjoying Franklin’s Barbecue and a late and exquisite dinner at Emmer and Rye.
John and I returned home over the weekend. My last day of normalcy was on Thursday, March 12th. I had committed to speaking at the Arlington Women Entrepreneur Summit 2020 on Alternative Dispute Resolution and Small Business. When I look at a picture taken at the conference, I am now amazed at how close together my friends and I were standing to each other. The whole world has changed since then.
We are healthy and safe. We are staying home except to do weekly grocery runs. John’s high school – H-B Woodlawn -- is closed for the rest of the school year as are all other schools in northern Virginia. My DC Court mediations have been canceled through May. I am teaching my law school class on line through Webex video conferencing. I have moved my entire mediation practice on line via Zoom video conferencing.
Each day seems to get easier as we adjust to our new routine. Initially I thought that mediating on line would be so difficult. But practice makes everything easier. I read tips from online mediation expert, friend, and colleague Susan Guthrie and played around with Zoom. I started mediating on line during the week of March 16th and now I welcome video conferencing as an added dimension to my practice.
In mediation, the process is simple:
1. Identify the issues
2. Pick the first issue to discuss
3. Brainstorm solutions to that issue
4. Evaluate each solution and ask questions
5. Make a joint decision on that issue (or decide to come back to the issue later)
6. Pick the next issue to discuss and repeat
7. After joint decisions are made on each issue, the mediator writes up an agreement
Meeting separately and confidentially with each party during a mediation can be achieved easily by using Zoom breakout rooms. So I can meet with both parties together, separate them into different breakout rooms if necessary and desired, and bring them back together – just as I do when we meet face to face. I can share a white board to list issues that we are discussing and share documents with my parties as well, such as financial worksheets. So we can all look at each other, be present for each other, and at the same time review the white board and/or various documents. In short, we can make online mediations work quite well, and my clients are happy with this level of service.
I work with intact families and families who are separating and divorcing, as well as families who have post-divorce issues. I also work with small businesses who may have business partner disputes or disputes with manufacturers or suppliers. Most disputes can be resolved through mediation, whether the dispute is between neighbors, employers and employees, contractor/homeowner, or landlord/tenant, for example.
I’d love to hear how all of you are doing as March comes to an end and we welcome April – and spring! Stay safe and healthy everyone. And please let me know if I can help with any issues that may arise as we are all living, schooling, and working together in close quarters, taking things one day at a time.
Below are photos from our happy trip to Austin and from the AWE Summit 2020:
If you are a business owner, have you ever had a dispute with a business partner or employee or perhaps a manufacturer or a supplier? I am excited to share that I was chosen to speak at the Awesome Women Entrepreneur (AWE) conference in Arlington at Marymount University's Ballston Center on Thursday, March 12th on how to Prepare for, Prevent, and Resolve Business Disputes. Attendees will be business owners and entrepreneurs from all over the D.C., Maryland, and Virginia region. My presentation will describe litigation, arbitration, and adversarial negotiation. I will discuss the benefits of using alternative dispute resolution (ADR) methods to resolve business disputes, such as interest-based negotiation and mediation, as well as collaborative law.
I'll be talking about why it's important to include clauses in business contracts that, in the event of a dispute, the parties to the dispute will use mediation or collaborative practice as an attempt to resolve the dispute. Ideally, the ADR process will take place before a case is filed in court. The parties to a dispute can brainstorm solutions together and evaluate those solutions, resulting in a creative settlement that might involve addressing emotions, apologizing, and addressing any ongoing relationship issues, rather than limiting themselves to the resolutions available to a court.
Hope to see you there!
I am back teaching my 6th semester at George Mason University’s Scalia Law School. I teach Alternative Dispute Resolution in the Fall and Mediation in the Spring. Last week was my first Spring class, and I am excited that my students are highly engaged and ready to participate in this experiential class. I am preparing for tomorrow’s class on principled negotiation, also known as cooperative or interest-based negotiation.
Competitive Negotiation, also known as positional bargaining, assumes 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 or to obtain as much as possible. Negotiation is viewed like litigation – someone must win and someone must lose.
Adversarial Negotiation is a more aggressive and competitive model than the competitive approach. Adversarial negotiators may provide the other side with misleading clues, bluffs, and distorted facts for the purpose of creating incorrect conclusions that are beneficial to the competitor. Tactics include: using theatrics, asking for more than you expect to get, never saying yes to the first offer, flinching at proposals, using threats and ultimatums, saying “you’ll have to do better than that”, creating an uncomfortable environment, and giving false deadlines, among other strategies.
Cooperative Negotiation can be used effectively on almost any type of conflict. According to Roger Fisher and Bill Ury, positional bargaining does not tend to produce good agreements because it is inefficient, respective interests are neglected, ego tends to be involved, and it encourages stubbornness thus harming the parties’ relationship.
In interest-based negotiation, Fisher and Ury talk about the need to separate the people from the problem, focus on interests not positions, invent options for mutual gain, and insist on using objective criteria to resolve differences. Know your Best Alternative To A Negotiated Agreement or BATNA – your alternative course of action a party can take if negotiations fail and an agreement cannot be reached.
Watch this you tube video for more information on how principled negotiation can be used on almost any type of conflict: https://www.youtube.com/watch?v=EKHg9H0G6go.
This month's guest blogger is Julia Barnes, a 2016 Virginia Tech graduate, who is pursuing her Master's degree in Journalism in Boulder and enjoying the beauty of Colorado.
This past August, my boyfriend Nick and I moved from Arlington, Virginia to Boulder, Colorado so that I could attend graduate school at the University of Colorado. One of the things that upset me most about moving was leaving our adorable Arlington apartment behind. It had taken a month long, painstaking search to find the bright, open, high rise unit in the Clarendon neighborhood that Nick and I could afford.
Several months prior to moving, we did a Facetime tour with a landlord in Boulder and pre-leased an apartment for the upcoming school year. Although the Boulder apartment wasn’t as spectacular as our current dwelling, on Facetime all looked well. The apartment appeared to be bright, older but well-maintained, and had beautiful hardwood floors throughout.
When we arrived in Boulder on Friday, August 2nd (after a week-long road trip from the East Coast) our new landlord met us at the front door. She showed us around our new home, and I tried not to cry. The floors were dirty, the living room radiator was covered in rust and grime, paint was peeling off the walls and doors, door handles and kitchen cabinet hardware was missing and falling off, and, worst of all, there was disgusting black mold covering tile and window frame in the shower.
Everything in the new apartment was dank, scary, and smelly. There had clearly been no deep cleaning done between the prior tenant moving out and us moving in.
After the landlord left, I immediately burst into tears and told Nick there was no way I could live there. It only took us about 20 minutes to decide – we weighed the pros and cons of staying in the apartment for a year versus breaking the lease. We both felt that we could not be happy in this apartment. I get easily stressed out by school work, and therefore I need my home to be a calming sanctuary. Nick works from home and did not feel like he would be comfortable sitting at home most of the day in a dank apartment. We agreed that it would surely look better with a deep clean, but that felt like putting lipstick on a pig.
In an attempt to be diplomatic, we called the landlord and told her about all of the issues we had with the apartment. She offered right away to get her cleaning lady to come by that Wednesday to deep clean, an offer which we accepted and appreciated. She did not offer to fix the peeling paint and did not think the mold in the bathroom was a huge issue. She also told us to put a piece of plywood over the rusty radiator if we found it visually unappealing.
By the weekend, we were desperately apartment searching. We found an acceptable, darker-than-I-would-prefer but very modern apartment in Boulder. After realizing we had a valid option, and not wanting to miss out on a much more comfortable apartment, we texted (her preferred method of communication) our landlord and told her we were moving out by Sunday, August 11th.
At the time, our landlord was apologetic – she said she was sad to see us go, but that she would post the apartment listing online immediately. Thankfully, she was able to find a tenant to move in within 5 days of posting the ad.
After we had settled into our new apartment, and the new tenant had moved in to our old apartment, we texted the landlord asking when we should expect our $1,650 security deposit back (we did not ask for, or expect, any portion of August rent back).
She responded by saying, “I have no plans to give back any part of your deposit. You forfeited the entire deposit by breaking the lease.”
Like any good tenants, Nick and I had combed through our lease prior to breaking it just to know exactly what we could be dealing with. There was no “deposit forfeiture” clause in our lease. At this point, it was clear that she was attempting to use jargon and scare tactics to try and keep our money. This deeply upset me – I felt that she was being predatory and taking advantage of the fact that we were young, and maybe didn’t have the resources to fight back. Well she was wrong. Like any informed and educated individuals, we realized we were in over our heads, and reached out for help.
At this stage, we consulted with Little Falls Mediation. The principal mediator told me that you need to try and negotiate and attempt to reach a reasonable solution before you can escalate matters. At first, we tried to talk to the landlord, both by calling and texting – all attempts were ignored. To us, it seemed reasonable that we should get some portion of the deposit back, minus any expenses she incurred in attempting to find a new tenant.
Finally, the landlord emailed Nick a bogus itemized “list” of expenses to try and justify keeping our security deposit. Here’s what she sent:
I have retained the deposit to recover my damages for your default of the lease. My damages are as follows:
Property management: $1,000
Rental commission: $800
G&A Costs: $250
Total damages: $2,400
I believe and support that the landlord was entitled to recoup any damages she had from our decision. However, it was clear to us that this “list” was nonspecific and, honestly, fraudulent.
Later, we found out that we received this “list” because Colorado requires all landlords to compile this list if they are keeping any part of a deposit. If a landlord fails to send an itemized list within 60 days, the landlord is required by law to give the whole deposit back.
It looked like it was time to consult with a lawyer. Fortunately for us, the University of Colorado provides free legal consultations for its students. We met with a wonderful lawyer who knew Colorado landlord/tenant law forwards and backwards. He spent over an hour and a half with us going over our story and running through all scenarios. He agreed that the damages that our landlord claimed were fraudulent, and he helped us write a “7 Day Demand Letter” asking for our full deposit back. Here’s an excerpt from the letter we sent:
We paid a $1650 security deposit at the beginning of the lease. You have withheld itemized deductions that were for damages that are not supported by Colorado law or general contract law. Further, an email with a recitation of subjective damages not supported by invoice does not constitute a proper “itemization of damages” under the security deposit statute.
Notice is hereby given that the undersigned intends to file legal proceedings against you, due to the wrongful and willful retention of $1,650. If we do not receive the full amount of $1,650 from you within seven days of your receipt of this letter, we will sue for treble damages in the amount of $4,950, plus court costs and attorney’s fees pursuant to Colorado State law.
Our lawyer advised us to wait about a month for her to respond before we filed against her in Small Claims Court. Within two weeks after sending the letter, we received a check from her in the mail for the full amount of our security deposit.
For us, it was really important to try and negotiate with the landlord and resolve the dispute ourselves. Unfortunately, sometimes that isn’t possible when the other party is not willing to negotiate. In this instance, we had to take a more aggressive stance. Although threatening litigation is not ever our first preference, Nick and I are very grateful for the help we received from Little Falls Mediation and our lawyer.
Julia and Nick
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.
The spring semester at George Mason University's Scalia Law School began last week, and I am excited to teach my highly engaged students. It's hard to believe that this semester marks the 6th semester I have been teaching at the law school. (I still have exam anxiety dreams from my time at Georgetown University Law Center.) I have devoted the first three classes of my experiential Mediation course to the study and role play of negotiation. Students will soon observe live mediations at Multi-Door Dispute Resolution in D.C. Superior Court, Small Claims Division. Communication and negotiation play a big part in dispute resolution.
Competitive negotiators tend to do whatever it takes to reach their desired agreement – even at the expense of another person or entity. They are results-oriented and focused on achieving short-term goals quickly. Competitive negotiation assumes win/lose.
Adversarial negotiation tactics work through manipulation. These negotiators use a range of pressure tactics to defeat the other side and get what they want.
Cooperative, collaborative or interest-based negotiation involves parties in an effort to jointly meet each others' needs and satisfy interests. The negotiators focus on attacking the problem posed by the negotiations, not each other, and on brainstorming and evaluating solutions together.
Roger Fisher and Bill Ury wrote the best selling Getting To Yes In 1981 which emphasizes these four principles as the core of interest-based or cooperative negotiation:
• Separate the people from the problem
• Focus on interests, not positions
• Invent options for mutual gain
• Insist on objective criteria
Watch this four minute video that demonstrates how principled negotiation (as opposed to competitive or adversarial negotiation) works:
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.