I recently mediated a divorce case and emotions were running high. At one point, the husband said to his wife that he was truly sorry if he had not articulated his appreciation for his wife's contributions to the marriage. I was able to see firsthand how a sincere apology changed the dynamic between the parties and allowed them to finish discussing all of the issues that they had identified as important to them in that particular session.
According to dictionary.com, an apology is a written or spoken expression of one's regret, remorse, or sorrow for having insulted, failed, injured, or wronged another. Rabbi Amy Schwartzman of Temple Rodef Shalom says that she has learned that apologies can be complex, that they often require many conversations, and that forgiveness cannot be expected immediately. And according to Beverly Engel, apology has "the power to repair harm, mend relationships, soothe wounds and heal broken hearts" (Psychology Today, The Power of Apology, June 9, 2016).
So does apology have a place in mediation? I think that apology can be an effective tool in mediation that helps to allow the parties to reach closure. Here is an example of a case where apology was the turning point in mediation:
Scott Krueger arrived for his freshman year at the Massachusetts Institute of Technology (MIT) in the Fall of 1997. Five weeks later he was dead of alcohol poisoning after fraternity initiation. Scott's parents intended to sue MIT alleging a culture of alcohol abuse and a housing arrangement that steered new students to live in fraternities. MIT's lawyers saw this case as one that could be won through litigation but the university chose to offer to mediate instead.
During negotiations, Scott's parents angrily asked MIT's President why he attended their son's funeral but did not seek them out personally to extend his condolences. The President responded that he had consulted with people about whether he should approach the Kruegers and was advised that, in light of their anger at MIT, he should not do so. That advice was wrong, he said, and he regretted following it. He went on to apologize for the university's role in what he described as a terrible, terrible tragedy. "We failed you," he said and then asked "What can we do to make it right?" This apology was the critical moment in the case, and the mediator channeled the discussion toward what the Kruegers wanted and what the university could do. No court could have compelled this personal, unconditional apology.
In the end, MIT paid the Kruegers $4.75 million to settle their claims and contributed an additional $1.25 million to a scholarship fund that the family would administer. At the conclusion of the process, the President and Mrs. Krueger hugged each other. The mediator's greatest contribution was to allow the emotion to be directed to him and then re-directed to the President and the university. MIT felt that the agreement minimized the harm that litigation could have caused the university and that the settlement made sense. MIT leadership recognized that MIT policies regarding student use of alcohol could have been better. University leadership also felt that a narrowly drawn legal response would not be in keeping with MIT's values. (Golann and Folberg, Mediation, The Roles of Advocate and Neutral, Third Edition, 2016..)
How do we ensure that apologies are sincere? Rabbi Schwartzman quotes from the book "On Apology" by Aaron Lazare in a sermon she delivered on Rosh Hashanah in 2013. "The first step in apologizing is to recognize our offense and also to recognize its impact on the person hurt. We also have to show we truly regret what we did. We have to actually ask for forgiveness and be prepared to do whatever it takes to mend as much as we can. Finally, an apology is not really complete until, after resolving to refrain from the transgression in the future, we do indeed refrain from repeating the offense when the opportunity arises."
Compare the MIT President's apology with an apology made by Justin Timberlake after the Super Bowl halftime show when Janet Jackson experienced a wardrobe malfunction. A week later, the following apology was made: "I know it has been a rough week on everyone and, umm, what occurred was unintentional, completely regrettable, and I apologize if you guys were offended."
Golann and Folberg believe that mediation provides a setting in which disputants can apologize more easily than in direct negotiation -- perhaps because the mediation process is confidential and allows people to speak without concern that the apology will be used against them in a courtroom at a later date. It is thought, though, that a partial apology will be heard as insincere and thus will lower the chance of settlement. Ultimately, Golann and Folberg conclude that how an apology is made is crucial to its effectiveness.
Mediator Carl D. Schneider quotes E. Kastor from The Repentance Consensus: A Simple Apology Just Doesn't Cut It and and says that "An apology may be just a brief moment in mediation. Yet it is often the margin of difference, however slight, that allows parties to settle. At heart, many mediations are dealing with damaged relationships. When offered with integrity and timing, an apology can indeed be a critically important moment in mediation. Trust has been broken. An apology, when acknowledged, can restore trust. The past is not erased, but the present is changed." (What It Means to Be Sorry: the Power of Apology in Mediation, January, 2006.)
On Wednesday, my colleague Renee and I finished teaching our last Mediation class of the semester at George Mason Antonin Scalia Law School. It's hard to believe we have finished an entire year of teaching; we taught an Alternative Dispute Resolution class last fall as well as our Spring 2018 Mediation class.
During our first three classes, we focused on teaching our students basic negotiation skills, using the wisdom of Roger Fisher and Bill Ury's Getting to Yes. The book focuses on interest based negotiation rather than position based. The premise is to: (1) separate the people from the problem, (2) focus on common interests, not positions. (3) invent options for mutual gain, and (4) use objective criteria. We had our students participate in a negotiation where one party needed the seeds of a sunflower and the other party needed the petals -- and there are a limited number of sunflowers available. Neither party knew the need of the other party, and our students focused on trying to buy as many sunflowers as possible! Our students also participated in a negotiation involving the purchase of a used car from a work colleague and development of a Best Alternative to a Negotiated Agreement (BATNA).
We sent our students to Multi-Door Dispute Resolution, which is located in D.C. Courts, to observe mediations of Small Claims cases which are disputes under $10,000. Our next few classes were a combination of exploring the various stages of the mediation process (including introduction and orientation, understanding the parties and issues, problem solving, caucusing, and agreement writing) and practicing mediator skills such as active listening, reframing, and paraphrasing. We spent a good portion of one class discussing how to manage emotions in mediation by using Bill Eddy's "So What's Your Proposal" and EAR (Empathy, Attention, Respect) methods. Our students participated in a role play involving a landlord/tenant issue and another one involving college students in a dorm who were trying to resolve conflicts over noise and items borrowed without permission.
We had three wonderful guest speakers visit our class: mediator and lawyer Rick Shapira, retired judge Honorable Paul Sheridan who is with the McCammon Group, and litigator/mediator/substitute judge Brian Hirsch. Rick focused on the importance of the attorney role in mediation, while Judge Sheridan spoke about the McCammon Group's particular style of mediation. Most mediators at McCammon are retired judges. Mediations can go for many hours until all issues are resolved in just one session, and attorneys are always involved as part of the process. Brian spoke about evaluative mediation, which he says is at the intersection of mediation and litigation. He contrasted the evaluative approach, which is typically practiced only after a judge has at least 10 years of experience on the bench, with facilitative mediation, which is the type of mediation that I practice. Our class participated in one final role play, Waltham Construction versus Foster Fuels, a lawsuit between two companies over an allegedly defective product. Last, our class concluded with an ethics discussion.
Our students kept journals that they wrote in weekly after each class. They had to turn in two separate journal reflections in class with no advance notice. Students turned in all thirteen of their journal entries yesterday, and it was fascinating to read their impressions and thoughts about what they were learning in each class and how they were applying these principles in every day life. We are looking forward to reading their final research papers which are due in one week. We have really enjoyed getting to know our students and teaching them about mediation!
Thank you so much, Arlington, for voting me Best Attorney in the Sun Gazette 2018 Best of Arlington Poll! I very much appreciate this honor.
This week I've been busy reviewing, proof reading, and editing the final draft of a new book by Larry Gaughan called Concepts, Strategies, and Skills for Divorce Professionals. I think of Larry as the Father of Mediation in the Washington, D.C. metropolitan area. Larry has been involved with the alternative dispute resolution (ADR) of family law cases for over thirty-five years. Larry is a lawyer and mediator and is also certified for collaborative practice. He has studied family systems at Georgetown University, and he has taught ADR seminars as a professor at George Mason University law school. I had the pleasure of meeting Larry at the Academy of Professional Mediators conference a few year ago, and he has been guest speaker at the ADR class I currently co-teach at George Mason's Antonin Scalia Law School.
Larry's book is about the roles of divorce professionals in helping divorcing spouses resolve the details of their divorce while avoiding the frustration, expense, delays, and stress of litigation. It is also about obtaining individuals who are separating and divorcing the assistance they need for effective personal, financial, and vocational planning and in managing the various transitions of divorce. Stay tuned for its upcoming release this year.
Have a wonderful spring break. Enjoy the sunshine and the start of a new season. Happy Passover and Happy Easter! "The first blooms of spring always make my heart sing." -- S. Brown.
I asked my friend and colleague Christine Searle of Searle Business Solutions to guest blog about the impact of the new tax law and its impact on divorce negotiations:
Divorcing couples already had a lot of tough financial decisions to make before the Tax Cut and Jobs Act was passed. Those decisions got more complicated with the stroke of a pen on December 22, 2017. The new tax law impacts almost every U.S. taxpayer. Divorcing couples and their advisors need to learn a whole new set of rules to make informed financial decisions.
Every situation is different, so getting the right advice requires input from a qualified tax professional. At a minimum, divorcing couples who are planning for an equitable and informed settlement negotiation should be aware of four areas that changed under the new tax law:
1. Tax Brackets and Filing Status -- Marginal tax brackets are now lower for most taxpayers. Filing status income levels for “married filing separately” and “head of household” were adjusted to eliminate the marriage penalty and to increase tax advantages for qualifying heads of household versus filing single. Separated couples still face the daunting task of deciding which “married” filing status results in a lower tax and provides for equitable tax deduction allocation.
2. Alimony and Spousal Support -- For divorce or separation agreements effective after December 31, 2018, alimony and spousal support or maintenance payments will not be deductible for the payer and taxable to the recipient. Removing the tax impact for both parties eliminates the need to “right size” spousal support or maintenance payments to make after-tax amounts equitable for each party. Existing agreements can be renegotiated to capture this provision.
3. Standard Deduction and Itemized Deductions -- Deciding which spouse gets to take the mortgage interest and other itemized deductions requires careful assessment, in light of the higher standard deduction amounts and new limits on some itemized deductions. Separated couples who elect the “married filing separately” status should be aware that if one spouse itemizes, the other spouse must itemize, too, even if his or her standard deduction is higher.
4. Personal Exemptions and Child Credits -- The $4,050 personal exemption is eliminated and the child tax credit is doubled from $1,000 to $2,000. These changes can be material in deciding which parent reports a child for tax purposes, on top of factors that remain in place -- accounting for any disparity in spouses’ income and tax brackets, the ability to deduct medical expenses, and use of the preferential “head of household” filing status.
The 2017 Tax Cut and Jobs Act changed more for taxpayers than we can fit into this blog post. Have more questions? Gain a better understanding of these significant tax changes by attending my workshop, “Planning Under the 2017 Tax Law”. Check upcoming dates on my website www.searlebzllc.com or contact me at Christine@searlebzllc.com to schedule a workshop for your group.
In the 1970s, my parents got divorced, and I was devastated that my family was no longer intact. My father moved out and remarried immediately. I was embarrassed and uncomfortable about everything divorce-related and did not like to talk about my family life to anyone. Flash forward many years. My siblings and step-siblings and I now plan spring break vacations in Anna Maria Island, Florida for ourselves, our kids, and our parents, and we have a blast.
The majority of the cases that I presently handle involve families who are separating and divorcing. Many of my neighbors, friends, colleagues, and acquaintances have uncoupled, entered into the dating game, and re-married. And these days people are much more open about sharing funny stories and talking about the challenges of successfully blending two families.
Everyone has a good idea or two regarding how to successfully blend a family. After talking with friends and family, here are my top five tips for successfully blending a family:
1. Spend one on one time with your significant other, your biological children, and your stepchildren. Be present, be patient, be positive, and be accepting. Allow lots of time for all relationships to be nurtured. Some children may want to engage more with family members and activities than other children. Don't force children to partake in family activities if they don't want to. But do provide regular family meals, celebrations, outings, and get togethers where everyone is invited to gather for good food, conversation, and fun. Have a good sense of humor.
2. Have realistic expectations about how the blended family will bond. There may be step-sibling relationship issues, disrespectful behavior, acting out, and loyalty conflicts, as well as issues over money, household responsibilities, parenting styles, vacations, holidays, and boundaries. Traditional family systems, as well as blended families, wrestle with many of these same issues! Decide in advance with your significant other what the house rules and routines will be. Discipline your own children and not your stepchildren.
3. Hang on to old family traditions and develop new traditions that are specific to the blended family. One blended family started a new tradition of spending a week at a different lake each summer with all the children invited but not required to attend, while holding onto old traditions of spending time with family from the Northeast for Thanksgiving or Christmas each year. Another family held onto the Sunday morning tradition of making chocolate chip pancakes each week and created a new tradition of cooking a Feast of the Seven Fishes for Christmas Eve each year. In our family, one of our rituals on Anna Maria Island is to drop whatever we are doing at sunset and meet on the beach to watch the sun go down together. Decide in advance how to celebrate special events and holidays.
4. Acknowledge and mourn losses that family members are grieving and have faced in the past. A child may be mourning the loss of the original intact traditional family on his or her birthday and/or special event or grieving the loss of his or her parent who doesn't regularly attend sporting events, plays, and recitals because he or she now lives out of town. Children need to feel loved, safe, valued, supported, and heard. Encourage and invite them to share their thoughts and feelings and be a good listener. Do not say anything negative about your stepchild's biological parent (your significant other's ex-spouse.)
5. Get support. You as parents are the foundation of the family. Be unified as a couple and support each other. Read up on marriage, parenting, and blended families. You may need to meet with a financial planner to discuss how to handle money management, financial issues, and investment matters in a blended family, as well as to obtain specific guidance regarding how to handle obligations such as child support and spousal support. You may also choose to seek help with challenging parenting or family issues by meeting with the clergy at your church or temple, a good therapist or life coach, or by joining or creating a support group.
Let me know your own favorite tips for successfully blending your family by commenting below! Here is our family in April, 2016 and 2017 on our favorite Anna Maria Island beach at sunset.
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.
Ellice Halpern, J.D., is a Virginia Supreme Court certified general and family mediator.