For those who do not follow sports, the name of Joe Paterno meant little until a few months ago. Coach Paterno, of Penn State football fame, had won more college football games than any other coach who had performed on his level of collegiate football. Ultimately, he was released from his duties after a former assistant was accused of abusing young children. Many wrote at the time of Coach Paterno’s dismissal (after 6 decades of service) that the decision had been a proper one. It was with interest, therefore, that many read the sports pages around the country to see how Mr. Paterno was remembered after the news of his death had been announced this past weekend.
One article took a balanced approach. Coach Paterno had been a mentor and role model to many Penn State athletes. He stood for excellence on the field and in the classroom. This was the positive aspect of Paterno’s life. But he turned a “blind eye” to the plight of the children that he had reason to believe had been abused by his coaching assistant. The writer’s conclusion? Coach Paterno was a good deal like many of us. He had some admirable traits and he also had some major failings.
I found this to be a realistic approach. We tend to make our famous fellow traveler’s into sinners or saints. The truth usually lies somewhere between these two opposite poles. Very few sinners are without some redeeming feature and few saints have an untainted career resume. We are part saint and part sinner in our most basic makeup.
It is easy in a divorce process to paint our “opposite number” as sinners. Of course, we belong to the group known as saints. The truth usually lies at some point in between these two extremes for all who are involved in the process of divorce. Mediation allows us to see people in terms of their needs and not their DNA nor their moral worth. This is a healthy way to view others. Mediation can lead to positive discussion in lieu of judgmental conclusions. Does this make sense as a reasonable approach to divorce? I believe it does. Mediate, don’t litigate.
Death of a Legend?/Martin Rosenfeld
Negotiations and You/Martin Rosenfeld
Richard Haass, a career diplomat and public servant, yesterday appeared on a talk show and discussed the upcoming election. Mr. Haass opined that the winning formula for a successful candidate would need to be honesty. In effect the candidate will need to say: “We are facing problems in America, the remedy will not come quickly, but we can see this through.” Years ago, when President Eisenhower ran for office, he told a story with the similar theme of being straightforward. The anecdote was about the spiritually-minded small town farmer who wished to see his cow. When asked how much milk this cow normally produced, the farmer realized he did not know how to answer the question. Facts evaded him. The farmer simply replied: “This cow is an honest cow. Whatever milk she has, she will give you”.
People appreciate honesty and being given straight talk. If you have a legal dispute with another (family, commercial, etc.) why not settle for honest talk. “This is what I need, this is what I can give.” Chances are that the other party will appreciate this and will act in kind. Honest discussion helps both parties, reduces rancor, and ultimately reduces the cost of your legal representation. Honesty is a possible by-product of mediated discussion. It is virtually impossible to attain through litigation and confrontation. As always, the best advice is this; mediate don’t litigate.
How Do I Act Post-Divorce/Martin Rosenfeld
A recent blog appeared on the HuffingtonPost website by Amy Chan, entitled “Unhappily Ever After”. There were parts of the article that I found to be too syrupy and yet other portions were right on target. Ms. Chan deals with how a party should conduct themself post-divorce. In the first half of her post (the part I find more difficult to “buy into”), Ms. Chan discusses how a party should always choose the “high road” even where their “ex” does not do so because “love doesn’t disappear just because the titles have”. In other words, since you were once married to your “ex”, certain behavior is to be expected even where the other party does not act in kind. In principle, this type of high-minded behavior is wonderful, but I see this as a pipe-dream with little connection to reality. In like fashion, the advice to remember the happiness you once shared, sounds better in theory than it will do in reality.
Having pointed out the impracticality (in my opinion) of Ms. Chan’s first theses, I now turn to the second half of her advice. Ms. Chan reminds us of ethical behavior that is expected of us. While your “ex” may not have chosen the “high road”, you must remember that you can only control your own behavior, not that of your former spouse. It is never acceptable to explain away boorish behavior by saying “S/he started”. In the conclusion, Ms. Chan develops a fool-proof test. How will the “you” of five years from now view your own behavior during the time of divorce? Things tend to look different after the trauma has passed. Will you be proud, then, of your actions “now”. Most decidedly, how will your children think of your behavior? Is your behavior of the type that you would wish your children to emulate as they go through life’s challenges and traumas?
Acting civilly during divorce is not something many attorneys will necessarily focus upon. But you will have a life post-divorce. How do you wish to view your own behavior as it played out during the throes of divorce. The post by Ms. Chan gives us much food for thought in that direction.
What the Top Story of 2011 Teaches Us About Negotiation/Martin Rosenfeld
If 2011 was the Year of the Protester, then much credit must go to the Occupy Wall Street Movement. What did the Movement accomplish? In my opinion, not really anything. However, it did prove the old maxim that if you don’t know where you are going, all roads will take you there. A person involved in a human transaction, or negotiation, needs to know what s/he is seeking to accomplish. I am not sure that the Occupy movement ever got past this stage.
What does this mean for us. We are often involved in negotiations, with children, with business partners, ex-spouses, etc. You need to determine what it is you want, how you can best express your need, and what you are prepared to do to accomplish your goal. I suspect that many parties to a divorce define this all in a simple fashion: I intend to retain the best attorney I can afford. This strategy is perhaps tantamount to the Occupy participants stating that they intend to discuss inequality and inequity. When you enter into a discussion, negotiation, etc., be as specific as you can be. We all want fairness. We all want to be vindicated. We all desire justice. However, to get what you need, you will need to define your needs, and the process you will follow, in order to get a reasonable chance of success. Unsure how to do this. Pursue the course of Win-Win and seek the aid of a trained mediator. You won’t get to be the “Story of the Year” but you will stand a very real chance of getting what you need to be successful in your undertaking. Mediate don’t litigate.
The Finances of Divorce/Martin Rosenfeld
Mediators, whether attorneys or not, take a great deal of pride in their work. The ability to work with a couple going through divorce, and helping them attain Win-Win is very great. The ability to help the couple avoid the trauma of litigation and confrontation cannot be overstated. Divorce Mediation is constructive and personalized. These factors are often cited as reasons for choosing divorce mediation over alternative processes.
The question I hear most frequently in this economic downturn is a rather honest one: “How much will the divorce cost?” I encourage people to ask this question as cost is a factor that cannot be understated. The difficulty in providing an answer is that attorney fees varies greatly by region to region and estimates found in the literature are often less than precise.
However, the question deserves specific information, so here goes. According to a July 2005 article found in Money magazine, a mediation can cost a couple from $3,000-$10,000. This cost is usually shared by the two parties in equal parts. (I find that most mediations approximate the low range of this estimate.) When a divorce is mediated, the parties will often have an additional fee of going to an attorney to review the agreement or to draw up divorce papers. This fee is subsumed in the estimate of $3,000-$10,000. A collaborative divorce will cost $16,000, and the cost can quickly rise if experts play a major role in the process. Attorney-to-attorney litigated divorces average $35,000, while an an added trial (most cases do not go to trial) cost somewhere in the range of $20,000-$50,000 additional dollars.
So there you have the financial information you need to make a wise decision. Should finances determine which option to use? I believe not. But isn’t it nice to know that divorce mediation is civil, constructive, AND is cost-effective? Only one conclusion results from the above: Mediate don’t litigate.
Post-Divorce Holidays/Martin Rosenfeld
A recent blog by Cicily Janus gives advice about celebrating Holidays post-divorce. The article appears as a Top-10 list and it contains much wisdom. The top 3 pointers are listed here:
3. Do not use time with your family to badmouth your ex. Firstly, you too are an ex-spouse and you are indicting yourself as well by pointing out how ex’s are responsible for the downfall of marriages. More important is the fact that your children need not be treated to a dissertation on why their parent’s character is deficient. This one is Lose-Lose all-around.
2. Don’t become so involved in finding a new love interest that you forsake your own family. Such behavior is both self-indulgent and self-destructive.
1. You are entitled to start life with a “clean slate”. Grieve over the lost relationship if you must but then give yourself the right to begin again and look forward rather than backward. There is an aphorism that only the oarsmen makes progress by looking backwards. Use the Holiday period for a chance for renewal and productive planning for your future.
The Janus article is available at HuffingtonPost’s website. It is worth your review.
A Short Marriage Offers Life Lessons/Martin Rosenfeld
Dr. Jane Greer, writing for Huffington Post , tried to outline some insights gleaned from the short-lived Kardashian wedding. As she describes it, a number of her clients had begun to ask how soon one may acknowledge that her marriage is not meant to be. The thoughts by Dr. Greer center about the difference between hope for a marriage as contrasted to the actual work and effort that a marriage requires. Should one admit defeat early on and “bail out” of their marriage before too much pain and disappointment has accrued? Dr. Greer has a more productive approach. Couples need to obtain coping skills. Marriage is about learning how to share and learning how to com[promise. Dr. Greer’s suggestion is not difficult to comprehend but it does entail emotional investment. In a marriage that is vulnerable, the couple will need to learn how to communicate and how to attain compromise between all stated desires and demands. Through the dedicated efforts of each party, a marriage that is foundering can be given the chance to succeed. This makes a good deal more sense that publicizing your problems and announcing through social media that the marriage has ended. Dr. Greer’s article can be found on HuffingtonPost.com. It tries to find constructive lessons in what has become a source of derision and ridicule.
Thoughts on Divorce/Martin Rosenfeld
Recently, Vicki Larson wrote a blog for Huffington Post on “How Not to Save Your Marriage”. There are still people who feel they can save a marriage by lavish gifts. If a new home will save your marriage, it might be worth a try, but one needs to know that this bears a low probability of success. Likewise, a decision to have a baby will not likely save a marriage. Ms. Larson points out how the stress and isolation that is often the result of adding one more to the household is not a likely recipe for marital bliss.
What then can one do if their marriage is “teetering on the rocks”. There are no shortcuts but Ms. Larson has two suggestions: Marital education (see articles in this blog, for example, on marital mediation) as well as marital therapy. If your marriage is important to you, it is worth a major effort. Don’t settle for solutions that bypass the need for conversation, professional help, and therapeutic intervention. You make find Ms. Larson’s piece at HuffingtonPost.com.
The Limitations of Mediation/Martin Rosenfeld
There was a recent article at mediate.com (an excellent source of mediation information) entitled “Mediation:Why Haven’t We Come Further?”. Nine factors are outlined explaining why mediation has to face certain built-in brakes on its potential popularity with the general public. I too often think of this question regarding the limited role of divorce mediation. I will limit my analysis of mediation’s challenges to three factors. In no wise, however, do I agree with these three concerns, but I do think they exist in people’s minds, for better or worse.
1. Divorce mediation offers a couple a sensible and civil way of resolving issues and attaining closure through reasonable behavior. Some prefer reprisal and revenge to civility, even where the latter is more in their interest. How many people will argue that they are fighting over divorce issues as a matter of principle? Answer:Too many. Not everybody desires a resolution of their divorce issues. Some do prefer litigation to mediation, as strange as that seems.
2. We are conditioned to go to legal personnel when issues arise that have legal ramifications. There are still too many people who believe that a divorce process requires the “blessing” of an attorney. It is ironic that people with less education tend, in greater numbers, to try to go through their divorce as pro se parties. While legal advice is wholly appropriate for all, the idea of proceeding without an attorney to exclusively handle all aspects of the divorce is one that can be very constructive. (This topic is too broad for a discussion in this brief post.) By ceding control over one’s divorce to a non-mediating attorney, a party is depriving themself of a process that can be healing and civil.
3. I sometimes Google an issue in mediation, and find Goole asking me “Do you mean meditation?”. Litigation probably goes back to the dawn of manking. Mediation, as a school of thought, might be no more than thirty years old. It deserves better publicity, P.R. and advertising. Perhaps this will change in the years ahead. Many people are simply unaware of divorce mediation. But at least YOU know about mediation…
It is sad that divorce mediation is not utilized more often. If I had to make an analogy, I would pose the following question: which tastes better, junk food or nutritional food? But which is more conducive to good health? Sometimes, the disciplined approach is well worth the effort. Mediate, don’t litigate. If you make the wrong decision, you will not be giving yourself the best chance for a successful future. The present system of litigation in divorce, has little to show for its centuries of use. Give yourself the best chance of a successful future; mediate your divorce. You will not regret the decision.
Am I to Blame?/Martin Rosenfeld
Jonah Goldberg wrote a humorous/contemplative piece about whether or not the average American is now to blame for America’s problems…along with George W. Bush, the Japanese tsunami, Wall Street, etc.,etc. This piece has a trenchant point to make. It is foolish to place the blame for failings on others. But this is what many do as they undergo the divorce process. I am not to blame for this “mess”; it is my ex’s fault! The blame game is immature, it accomplishes little, and it serves no constructive purpose. Want to do something constructive and proactive? Engage your spouse in discussion even as you divorce. Learn from the past failures so you can avoid these issues in the future. Try to leave your marriage with your dignity intact. I don’t know if Jonah Goldberg knows how to do this, but you certainly do. This civilty and dignity can be accomplised through mediation. Try it. It works.
