Along For the Ride – Taking Control Through Mediation

A recent article in California Lawyer Magazine was entitled “Along for the Ride”. It explored the legal and ethical issues of punishing those who were only peripherally involved in the commission of a crime.

For instance, you agree to be the designated driver when you and your new friend go nightclubbing. On the way there she asks you to stop at a liquor store so she can buy some chewing gum. You’re parked outside with the motor running and the radio playing loud, a minute later she runs back into the car and says, “Let’s go”! When the police arrest you 15 minutes later because a video surveillance camera gave them your license plates while your girlfriend went inside to shoot the clerk and empty the cash register, it sounds pretty lame to say “I didn’t know what she had planned!”

Happens all the time, I am told. Glad it’s not my job to defend those poor hapless dopes who find themselves facing trial as accessories to murder for being in the wrong place at the wrong time in the company of the wrong people.

The article did get me thinking. Many times a couple will present in my office for a consultation on the “big picture” of marital dissolution and how it can be most effectively achieved. When, after my discourse, I ask if there are any questions, one of them will kind of shrug and say words to the effect, “whatever she [or he] wants”. Clearly, this individual is, at this stage, “along for the ride”.

It is true that California, as a “no-fault” dissolution state, only requires one member of the marriage to declare that irreconcilable differences have arisen causing the irremediable breakdown of the marriage. This means that there is no need to present evidence and prove “grounds” for divorce. So at least in California, no lawyers are busy preparing their case based on “mental cruelty”. We should all be grateful for that.

However, the mere fact that only one party to the marriage wants out, does not mean that both members of the marriage do not need to be mindful of the process and keenly aware of their rights and obligations throughout the dissolution.

It has been our experience, here at Liaise, that a thoughtful mediation process does wonders in making both parties take a considered look at the procedure and begin a purposeful participation that vests both sides in the creation of a comprehensive Marital Settlement Agreement.

What may have started with one side merely going through the motions as a passive participant rapidly develops into a dialog where Husband and Wife engage in a give and take that results in an Agreement that each rightfully feels as if they had a hand in creating. This creates a more enduring Agreement and well earned feeling of self-direction in the dissolution process.

When I compare and contrast the mediation experience with the litigated dissolution experience, I feel very sorry for the people who took the old fashioned contested path to divorce.

Do yourself, your family, and your financial well being a favor and choose Liaise Mediated Solutions, LLC to help you navigate the treacherous waters of ending your marriage.

David D. Stein has been an attorney for over 20 years and the founder of Liaise^® Mediated Solutions. He is a trained mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

Open Letter to Leslee and David Lageschutte

On September 30, 2009 the Oakland Tribune ran a front page article entitled “The Anatomy of a Breakup” authored by Bruce Newman of their San Jose Mercury News affiliate.

The article does an excellent job of detailing the alienation and deterioration of a relationship between two people who may not have been that well suited for one another from the beginning, but who got married for what must have seemed like good ideas at the time. The couple had two daughters before their marriage ended.

Mr. Newman also spends a bit of time telling his readers that this couple of modest means has already spent over $25,000 in legal fees fighting over their savings.

What I want to say to Leslee and David is that when a marriage breaks up there is often anger and recrimination and an overriding desire to punish your former spouse. However, married couples with sufficient emotional intelligence know that during the very stressful period of marital dissolution they must have one abiding rule guiding their actions. That rule is that all of the decisions they make, or the actions they take, must be done in the best interests of the children.

Once a couple has adopted and embraced this guiding principle, common sense dictates that they must take all necessary steps to stop the fighting and sit down and negotiate a settlement to their dispute. They have a simple choice – keep fighting or send their daughters to college.

Fortunately, there is a well established, highly successful trend in the marital dissolution arena that can well serve David and Leslee and that is marital mediation. They can meet with a very well trained, deeply experienced mediator who can assist them in framing and managing all of the issues that arise in the dissolution process. At the end of the mediation they will emerge with a Marital Settlement Agreement that can be mailed to the Judge and incorporated into a Judgment of Dissolution. There is no need to ever appear in Court.

The cost of mediation is generally a tenth of the cost of litigation and the participants, as the architects of their own agreement, are more vested in the result. Leslee, David, do yourselves and your family a favor and hire a mediator to help you get through this mess.

The last thing I want to say to David and Leslee is that at my company when we help couples with children end their marriage we don’t call it a divorce or marital dissolution, we call it a marital reorganization. David, Leslee, in the very near future you will no longer be Husband and Wife, but you will always be Mommy and Daddy. Work together to construct a plan that will allow you to assure that the transition to your new family organization is, for the sake of your children, as smooth, painless and economical as possible.

Sincerely,
David D. Stein
Liaise Mediated Solutions, LLC

Marital Reorganization

In California what is popularly known as “divorce” is technically know as an action for marital “dissolution”. At Liaise Mediated Solutions, LLC whenever we service a couple that have children that wish to end their marriage, we use the term marital “reorganization” and do not use divorce or dissolution.

Reorganization is a term loosely borrowed from bankruptcy law. Under the bankruptcy codes there are two types of bankruptcy. There is a “liquidation” where the assets of a business entity are sold to pay off creditors and then the company goes out of business and ceases to exist. Then there is the “reorganization” situation where the business just gets some protection from its creditors for a period of time, is allowed to escape some contracts, pay some debts pennies on the dollar, propose a plan and re-emerge as a streamlined, changed and re-focused business.

We at Liaise know that the fastest, easiest, most productive and least painful way to accomplish an intelligent end to a marriage is through mediation. The mediation process itself is easier for couples that have children when both parties agree that whatever decisions made will be done with the “best interests of the children” foremost in their minds.

Once couples agree to the best interests of the children guiding principal, and there is never contention on that issue, we take the next logical step. The Liaise mediator explains that since the marriage was fortunate enough to create children there are certain family roles that will never change. After the mediation process the parties may no longer be husband and wife, but now and forever they are, and will remain, Mommy and Daddy. This means that they will always be a family. They may have different duties, responsibilities and privileges than they do now, but they are still a family. Just a reorganized family.

Liaise is all about helping our customers to plan for their future. As a matter of fact you can think of the marital settlement agreement that is negotiated during mediation as a family reorganization plan. The plan is detailed and comprehensive. It is designed to give as much guidance as possible to the parties and to be flexible enough to help when unforeseen circumstances arise. But most importantly, it is designed to allow the smooth transition into the re-organized marital role of post marriage Father and Mother so that the children of the marriage are comforted to the greatest degree possible and experience the least amount of disruption to their lives.

Divorce Tips from Ancient Master

Walnut Creek, CA: During a recent complicated and difficult mediation I was attempting to explain to one of the parties how much he had to gain from offering to his soon to be ex-wife what he thought was far too great a concession. From my neutral perspective I could see that if he gave up totally on what were important, but not critical, points of contention, he might experience a breakthrough in negotiations that would ultimately secure his most important goals in the divorce.

I was struggling to make my point and then I remembered the cogent words of the ancient Chinese General Sun Tzu. Sun Tzu is widely recognized as the author of the timeless work, The Art of War. A brilliant philosophy for managing conflict and purposely influencing events published sometime around the second century before the Common Era.

Quoting from General Sun’s masterpiece:

“Build your opponent a golden bridge to retreat across.”

Everyone involved in negotiation would do well to embrace this philosophy. You must make it easy and attractive for your “opponent” to take the steps you want them to take.

You must also keep in mind that this is no ordinary bridge you are building, it is a golden bridge. Gold is expensive. It has value to everyone. This means that there is sacrifice involved in its construction and there is value to the recipient. Overall, even though the bridge is made of gold, and very valuable to you, it is better to give it to the other side to use and avoid war. To put it another way, in a negotiation you may be providing the other side something they treasure in order to achieve your ultimate goal. Victory without battle.

Mediation, like so many things in life, is a negotiation. It is unrealistic and immature to expect to always get what you want in a negotiation without giving something in return. Learn from the classic master of strategy and tactics in how to effectively manage confrontation and pave the way to peace by showing your “opponent” a very attractive escape route that also achieves your goals.

David D. Stein has been an attorney for over 20 years and is the founder of Liaise® Mediated Solutions. He is a trained mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

What Would the Judge Do?

Many times during an initial consultation while I am talking with just one side of a dispute, that party will list a few facts for me – sometimes quite complex, and then ask, “So what would happen in court?”

The answer to that question is always the same, “nobody can say for sure.” Here are three good reasons why this is true.

First, the “law” is a living, breathing, moving thing. Every day, each reported case out of the appellate branches changes, reinterprets and redefines the body of law. No one can honestly and accurately say with exactitude what will happen when told, by one side, the “facts”. If the law changes every day, then you cannot accurately say what will happen on any given day in the future.

Second, a court of law hears the presentation of “facts” that the proffering side hopes will be entered into “evidence”. To be considered as evidence the proffered fact must be competent, relevant and not otherwise excludable for policy reasons. Roughly this means that the fact being presented must have a proper foundation, be on point and not be hearsay. That is to say that the person presenting the fact must have the requisite first hand knowledge of the fact. The fact itself must properly address the matter being considered and it must not be excluded from evidence for being an out of court statement being offered for the truth of the assertion.

Third, it is important to remember that what happens in a court room is a contest. The other side will be raising objections to your evidence, cross-examining your witnesses and presenting their side of the story which, if believed, will lead to a vastly different result.

Given just the three elements listed above, it is easy to see why it is not possible to accurately predict the outcome of a case based on the relating of a few facts from just one side of the story. It would be like having someone hand you one or two tiles from a huge mosaic and asking you to tell them what the entire work looks like. Can’t be done. Don’t trust anyone who tries to tell you otherwise.

This is one of the foremost reasons that people should consider mediation as the preferred method of managing their disputes. Unlike a lawsuit, in mediation the parties are not being “judged” and no decisions are being imposed upon them. Instead they are the architects of their own solutions and the settlement in a mediation is an agreement that each party has fully participated in creating.


David D. Stein has been an attorney for over 20 years and is the founder of Liaise® Mediated Solutions. He is a trained mediator, dispute resolution specialist and lecturer on non-violent conflict management techniques and tools.

Going To The Mattresses

This is the third in a series of three articles about lessons in perseverance I learned as a young lawyer that serve me, and my clients well, in mediation matters.

Early in my career the brilliant older attorney who served as my "mentor" said a few things to me that I didn't really understand that I have written about in previous articles. He told me to give a problem the "Smokey the Bear" treatment and he told me to "Bring a Toothbrush" to a hearing. He had to explain those homilies to me, and he did so with great relish. After all, the purpose of using such obscure colloquialisms is to have the recipient ask what the heck you mean so you can deliver the canned lecture you have in your pocket.

One thing he said to me before we were about to begin a month long preparation for trial was, "Stein, we're going to the mattresses."

This one I knew well and understood instantly. The quote was from Mario Puza's The Godfather. It was a tactic used when preparing for a protracted conflict with a rival gang. The "troops" would go to rented apartments and stage their battles from those "safe" locations. That way families would not be endangered and known "soldiers" would not be subject to ambush at home. The mattresses part is because many people would be sharing these quarters and rather than have actual beds for each guy, they would just bring in a bunch of mattresses for the temporary accommodations. So when he wryly tells me that we "are going to the mattresses", what he is really saying is kiss your wife goodbye, tell your children and pets you love them and you'll see them soon, until further notice you are in "full work mode" and you may, or may not, be going home only to sleep.

I use the same attitude when I am conducting mediations. Lots of times in mediation things are moving and that is a positive development. Mediation started in the morning, we worked through lunch and as the dinner hour approaches I would rather keep everyone together and send out for food then break and lose momentum. It's the old "going to the mattresses" attitude and you just stick to it until you get to the best result possible.

Many times I have had my clients ask if their experience with me is unique, because they can't believe how hard I work. I kind of laugh at the notion because, as far as I'm concerned, it's not hard work. It just sometimes takes a long time to accomplish the best results.

Mediator’s Best Friend: The Toothbrush

I remember well as a young lawyer when the senior litigator in the firm I worked for introduced me to an important client for whom I was about to handle a critical hearing. “Don’t worry about a damn thing”, he said. “Stein may be young but he knows enough that when he goes to this hearing, he’s bringing his toothbrush.”

The client, taking the bait, asked what that was supposed to mean. “That means,” the grizzled litigation war dog explained, “he is either coming back with the decision you deserve, or he is spending the night in jail for contempt of court!”

Great. Not too much pressure.

I’m pretty sure my “mentor” didn’t really mean that I should get arrested. Fortunately I’ll never know since the hearing went my way and all I had to do was nod along as the judge ripped into my opponent for wasting time and judicial resources.

What was important in that life lesson is adopting the determined mind set that such homilies teach us. Be prepared to do whatever it takes to achieve your goals. This lesson serves me well in my mediation practice.

Many times I have a civil mediation that is set to begin at 10:00 in the morning and I tell my wife to please walk the dog and not to expect me home for dinner. And yes, I do keep a toothbrush and toothpaste at my office.

My clients ask me how long they should plan to be at mediation and I tell them that I clear my calendar for the entire day and night. In a civil matter, if progress is being made, it is best practice to stay together until everything is hammered out. You keep momentum and avoid the backsliding and second guessing that can come from protracted breaks.

Now I have been careful to point out that this tactic applies best to civil matters – contract disputes- personal injury – real estate – financial issues - and by that I mean to exclude family law. In family law I find the best practice is to have orderly, time limited sessions. As opposed to mere monetary issues, family matters have repercussions that transcend the financial and such mediations should allow for as much consideration, contemplation, and reconsideration as the parties could possibly want.

When later in my career I was tasked with training young lawyers, I would present them with a new toothbrush before their first hearing. It’s not exactly saying “come back with your shield, or be carried upon it” as Spartan mothers supposedly said to their warrior sons going off to war. I like to think that it is saying be prepared to make every effort to achieve what you set out to do.

It is simply amazing what a trained mediator can accomplish after having embraced such an attitude. I know that nothing that happens in that mediation meeting room can sway or deter me from achieving the best possible result for my clients. My clients often comment on how hard I work and my success rate in excess of the 95th percentile is tangible evidence of the benefit of having that toothbrush always in your pocket.