New Blog Location
If you're just finding this blog, please be aware that I've upgraded to WordPress and the new blog can be found at http://www.sannsmediation.com/wordpress/
Benefits of Divorce Mediation
Here's an article from the New Straits Times (Malaysia) on divorce mediation. Mediation is not just an American function, but global. And the benefits are the same all over.
Speedy end to divorce plight via mediation
MALACCA, June 19, 2007:
After waiting for 1½ years for their divorce to be heard in court, they decided to appoint a mediator. Their marriage was dissolved in five hours.
Janice and her husband Ricky (not their real names) filed a divorce petition in 2003 and a date was set for the hearing at the Penang High Court in 2004.
The judge who heard their case three years ago had suggested that they appoint a mediator "in order to speed up the divorce process".
The mediator’s role is to help the aggrieved parties find a solution to their problem as opposed to the adversarial approach of the court.
"I didn’t know what a mediator was at that time but agreed to appoint one after consulting my lawyer. It was supposed to be a cheaper and faster method," said Janice, 35, a bank executive and mother of three.
She was devastated when she found lurid SMSes sent by another woman in her husband’s mobile phone and demanded an immediate divorce. She also sought custody of their children.
The couple thought that the only way of ending the marriage and contesting for the children’s custody was through the courts.
"If I had known about mediation earlier, I could have saved a lot of hassle.
"The 1½-year wait was a torture. I became frustrated and bitter worrying about my children. My work was affected and I turned into a walking zombie," said Janice.
Two weeks later, they found a mediator.
"He was very professional. He called for a meeting with the two of us in a private conference room and heard both sides of our stories.
"About five hours later, we were able to settle our disputes. We also understood each other’s problems and apologised to each other. My ex-husband and I are friends now,"
They also decided to raise the children together.
Janice said before the appointment of the mediator, she and her husband were made to attend three marriage tribunal sessions before the case was heard in court.
"It was frustrating. The tribunal was dysfunctional. The sessions did not help."
Instead of helping, she said, the officer told them: "Macam ini pun tak boleh settle sendirikah?" (Can’t you settle this matter yourselves?)
Janice would have paid at least RM5,000 if her divorce was settled in court compared with the mediator’s fee which was less than RM1,000.
Mediation and Confidentiality
A recent case in California has upheld the concept of confidentiality within the context of mediation. In Wimsatt v. Superior Court (Kausch), the Appellate Division ruled that a client could not obtain and use their attorney's mediation briefs (along with emails pertaining to the mediation) to pursue a malpractice claim against the attorney. In general, all communications relating to a mediation are confidential and cannot be used outside of mediation for any purpose (the main exceptions are the commission or contemplation of a crime or when the confidentiality would violate public policy or interest).
I encourage all of my clients to invoke their confidentiality rights in mediation. They are put into place to encourage parties to be as open as possible, so that paties can come to a resolution.
McGreevey Madness
Anyone sick and tired of these two folks divorcing? I am. And neither of them seem to want to shield their daughter from all of this. When the love of money tops the love of children, we are all in trouble.
Boxing and Mediation
You don't often think of boxing and mediation in the same thought, but here it is:
Top American boxing writer Michael Marley revealed a few minutes ago over at Boxingconfidential.com that Golden Boy Promotions and Top Rank executives have just come out of the court-ordered mediation.
"The Manny Pacquaio Peace Talks, which began Saturday morning in Los Angeles with representatives of Golden Boy Promotions and Top Rank sitting across the table from each other in a court-ordered mediation, seem to be making significant progress. So much so that TR and GBP agreed to resume their discussions on Monday morning," reports Marley.
"Those close to the situation are saying that there has been some talk of the two giant promotional companies 'sharing' rights to Pacman bouts," added Marley.
The report said mediation proceedings started at 9:30AM with a mediator "refereeing" then they took a lunch break, and then resumed with an afternoon session with concluded just before 6PM.
Marley was also able to get hold of Top Rank boss Bob Aru.
"I can't talk right now," Arum was quoted by Marley as saying, "but we are done for the day. Mediation will continue on Monday. That's all I can say at this time."
Mediation Survey Results
The International Institute for Conflict Prevention and Resolution (CPR) recently conducted a survey of 126 U.S. corporate counsel and outside counsel. They were asked their opinion about alternative dispute resolution. Here are the results of the survey:
|
Method |
Corp. Counsel |
Law Firms |
Grand Total |
|
Mediation |
4.00 |
3.89 |
3.95 |
|
Early Case Assessment |
4.00 |
3.37 |
3.69 |
|
Arbitration |
2.74 |
3.76 |
3.25 |
|
Multi-step ADR Clauses |
2.84 |
3.28 |
3.06 |
|
Internal ADR Training |
2.67 |
2.99 |
2.83 |
|
ADR Training for Business Clients |
2.12 |
2.55 |
2.34 |
|
Reason |
Corp. Counsel |
Law Firms |
Grand Total |
|
Cost Savings |
4.22 |
4.37 |
4.30 |
|
Speed |
4.09 |
4.36 |
4.23 |
|
Confidentiality |
3.82 |
4.22 |
4.02 |
|
Reduced Discovery |
3.87 |
4.10 |
3.99 |
|
Finality |
3.77 |
3.96 |
3.87 |
|
Maintain Relationships |
3.61 |
4.00 |
3.81 |
|
Improved Results |
3.70 |
3.92 |
3.81 |
Mediation Loses a Star
Mediation, relatively speaking, is a new field or science (at least in the formal sense...people have been informally mediating disputes for millenia). Last month, mediation lost one of its stars in Sam Kagel. Mr. Kagel helped settle labor disputes primarily, including Longshoremen strikes and most notably, the NFL strike in 1982. Mr. Kagel was 98 when he passed. Rest in peace.
Top 10 Divorce Myths
Courtesy of my alma-mater, Rutgers University.
The Top Ten Myths of Divorce
Discussion of the most common misinformation about divorce
David Popenoe
1 Because people learn from their bad experiences, second marriages tend to be more successful than first marriages.
Although many people who divorce have successful subsequent marriages, the divorce rate of remarriages is in fact higher than that of first marriages.
2 Living together before marriage is a good way to reduce the chances of eventually divorcing.
Many studies have found that those who live together before marriage have a considerably higher chance of eventually divorcing. The reasons for this are not well understood. In part, the type of people who are willing to cohabit may also be those who are more willing to divorce. There is some evidence that the act of cohabitation itself generates attitudes in people that are more conducive to divorce, for example the attitude that relationships are temporary and easily can be ended.
3 Divorce may cause problems for many of the children who are affected by it, but by and large these problems are not long lasting and the children recover relatively quickly.
Divorce increases the risk of interpersonal problems in children. There is evidence, both from small qualitative studies and from large-scale, long-term empirical studies, that many of these problems are long lasting. In fact, they may even become worse in adulthood.
4 Having a child together will help a couple to improve their marital satisfaction and prevent a divorce.
Many studies have shown that the most stressful time in a marriage is after the first child is born. Couples who have a child together have a slightly decreased risk of divorce compared to couples without children, but the decreased risk is far less than it used to be when parents with marital problems were more likely to stay together “for the sake of the children.”
5 Following divorce, the woman’s standard of living plummets by seventy three percent while that of the man’s improves by forty two percent.
This dramatic inequity, one of the most widely publicized statistics from the social sciences, was later found to be based on a faulty calculation. A reanalysis of the data determined that the woman’s loss was twenty seven percent while the man’s gain was ten percent. Irrespective of the magnitude of the differences, the gender gap is real and seems not to have narrowed much in recent decades.
6 When parents don’t get along, children are better off if their parents divorce than if they stay together.
A recent large-scale, long-term study suggests otherwise. While it found that parents’ marital unhappiness and discord have a broad negative impact on virtually every dimension of their children’s well-being, so does the fact of going through a divorce. In examining the negative impacts on children more closely, the study discovered that it was only the children in very high conflict homes who benefited from the conflict removal that divorce may bring. In lower-conflict marriages that end in divorce—and the study found that perhaps as many as two thirds of the divorces were of this type—the situation of the children was made much worse following a divorce. Based on the findings of this study, therefore, except in the minority of high-conflict marriages it is better for the children if their parents stay together and work out their problems than if they divorce.
7 Because they are more cautious in entering marital relationships and also have a strong determination to avoid the possibility of divorce, children who grow up in a home broken by divorce tend to have as much success in their own marriages as those from intact homes.
Marriages of the children of divorce actually have a much higher rate of divorce than the marriages of children from intact families. A major reason for this, according to a recent study, is that children learn about marital commitment or permanence by observing their parents. In the children of divorce, the sense of commitment to a lifelong marriage has been undermined.
8 Following divorce, the children involved are better off in stepfamilies than in single-parent families.
The evidence suggests that stepfamilies are no improvement over single-parent families, even though typically income levels are higher and there is a father figure in the home. Stepfamilies tend to have their own set of problems, including interpersonal conflicts with new parent figures and a very high risk of family breakup.
9 Being very unhappy at certain points in a marriage is a good sign that the marriage will eventually end in divorce.
All marriages have their ups and downs. Recent research using a large national sample found that eighty six percent of people who were unhappily married in the late 1980s, and stayed with the marriage, indicated when interviewed five years later that they were happier. Indeed, three fifths of the formerly unhappily married couples rated their marriages as either “very happy” or “quite happy.”
10 It is usually men who initiate divorce proceedings
Two-thirds of all divorces are initiated by women. One recent study found that many of the reasons for this have to do with the nature of our divorce laws. For example, in most states women have a good chance of receiving custody of their children. Because women more strongly want to keep their children with them, in states where there is a presumption of shared custody with the husband the percentage of women who initiate divorces is much lower.10 Also, the higher rate of women initiators is probably due to the fact that men are more likely to be "badly behaved." Husbands, for example, are more likely than wives to have problems with drinking, drug abuse, and infidelity.
Who must attend?
Many of you have heard of the weight loss drug Fen-phen. This drug, after being banned by the FDA, was the subject of a class action lawsuit against the manufacturer. Subsequent to that lawsuit resolving, there was another lawsuit that was questioning the fees paid to the attorneys. Of the $200 million settlement, $125 million ended up going to the attorneys representing the class.
The fee case was ordered to mediation and the primary defendant did not show up. His attorney claimed that he was in Israel, but in constant contact with his client. The plaintiffs have asked the court to impose sanctions.
This raises an interesting question: is it necessary for a client to be physically present at a mediation? I personally prefer that everyone be phyiscally present at my mediation sessions. Why? Someone who is there is more engaged in the process. I can see their body language and they can see everyone else's body language. There is more of an imperative in coming to a resolution and feeling pressure from the mediator and the other side when you're there. It also shows the other parties that you want to reach a settlement, as you've also given up your time to be there. Often, disputes arise about how a person was treated, not necessarily what the claims are about.
There are other factors in whether I mandate attendance by a litigant. Is the defendant local or local enough to attend? How big is the claim or dipsuted amount? There's a large difference between $25,000 and $125 million. What's the time frame on the trial? Is there time to arrange the mediation where someone will come from far away or can re-arrange their schedule?
The end goal of mediation is to resolve the dispute. If all parties come to the table with that goal, it will happen.
And you thought your custody battle was tough?
Who's Your Daddy? Paternity Battle Between Brothers
May 22, 2007
copyright © 2007 ABC News Internet Ventures
Twin brothers Raymon and Richard Miller are the father and uncle to a 3-year-old little girl. The problem is, they don't know which is which. Or who is who.
The identical Missouri twins say they were unknowingly having sex with the same woman. And according to the woman's testimony, she had sex with each man on the same day. Within hours of each other.
When the woman in question, Holly Marie Adams, got pregnant, she named Raymon the father, but he contested and demanded a paternity test, bringing his own brother Richard to court.
But a paternity test in this case could not help. The test showed that both brothers have over a 99.9 percent probability of being the daddy and neither one wants to pay the child support. The result of the test has not only brought to light the limits of DNA evidence, it has also led to a three-year legal battle, a Miller family feud and a little girl who may never know who her real father is.
"'Did you sleep with him [Richard Miller] while in Sikeston for the rodeo?'," Cameron Parker, Richard's lawyer, said she asked Holly Marie Adams in 2003 court testimony, to which she answered "'Yes ma'am.'" "She then said she went to appellant's [Raymon Miller's]home where they had sex later that night or early the next morning," Parker said.
Asked if it is true that he did at one time formally date Adams, Richard Miller told ABC News, "Well, if you call that dating." Raymon confirms that he never dated Adams in any sense, but that they were "messing around."
Courtroom Double Trouble
As soon as Raymon was asked to pay child support, he demanded that he and his brother both take a paternity test. When the paternity test came back with the same results, he took the matter to the courts where Judge Fred Copeland ruled that even in light of the identical DNA tests and overlapping relationships, Raymon would remain the legal father of the child. Raymon hopes to continue appealing the decision.
"I want to go to the Supreme Court," Raymon told ABC News. "If they can't prove it's me then they should throw it out of court." And as for the child support, he said, "The state should eat it."
Miller contacted ABC News through the Law & Justice unit internet tipline. Copeland, however, notes that as the judge in the case, he does not have to depend solely on DNA evidence and can rule based on the testimony of Adams as well -- who believes she can nail down the date of conception to a night spent with Raymon.
"Look, she had a bunch of girlfriends to the rodeo and they got drunk and she went banging on Raymon's door trying to have sex," Copeland said. "He says he did reluctantly&but I can't imagine it was reluctantly and that's when the baby was conceived I guess."
As for the mother, Holly Marie Adams just wants the whole battle to be over.
"We've been to court over and over and they always ruled the same way," Adams said. "We are tired. We are done with this."
Family Feud
Richard, while admitting that he had a sexual relationship with Adams, believes that there is no way that he is the father and said that his brother just doesn't want the financial burden of a child.
"Raymon's the one that done everything," Richard told ABC News. "He's the one that brought this to court. It's just him not wanting to pay child support. It's a big mess if you ask me."
The two brothers are not the only ones in an awkward situation. Jean Boyd, the mother of the twins (and the child's grandmother they're sure she is the grandmother) has felt caught in the middle. "When this first happened I felt like I had gained a granddaughter but lost my sons," Boyd said. "The boys have been feuding and I can't choose between my kids." While Boyd sees her granddaughter regularly, she said the paternity confusion is what has kept her sons from the child. "Until they know that the daddy is the daddy and the uncle is the uncle, Raymon will never acknowledge the child. And Richard doesn't think it was his either&neither of them will have anything to do with her," Boyd added.
Clones
It seems, however, that the Millers and the courts will never know the true father.
"With identical twins, even if you sequenced their whole genome you wouldn't find difference&they're clones," said Dr. Bob Gaensslen, a forensic scientist at Orchid Cellmark labs in Texas. "There are a few things in science that are cut and dried and this is one of them."
Dr. Bob Giles, a paternity testing expert, agrees. "There is simply no test that explains the difference between two identical twins," he said.
More Like 50/50?
The final appellate court decision, filed this year, ruled that Raymon will remain the legal father. In Missouri, a paternity test must come back with 98 percent or higher probability that DNA matches in order for a man to be named the legal father.
"They say you have to prove with 98 percent certainty that you're the father. But since with my brother it's a 99 percent chance and with me it's a 99 percent chance -- that seems like more of a 50/50. What if there was a rape or murder case with twins? Then they could just go around pointing the finger at the other," Ramon said.
But a paternity suit is very different from a criminal case, noted Lori Andrews, a top genetics lawyer.
"In a criminal case there is a chance that the twin would get off because the DNA cannot pinpoint only one person, but here there is a different issue. The legal standard is lower."
Copeland agrees that the case will not be going any further. "When DNA cannot be definitive you just go back to the same evidence that we used before," Copeland said. As for the nature of the case, Copeland said it is one of the stranger legal situations he's encountered. "When you are on the bench long enough though, you see a lot of strange things," he said.
As for the child support,Gaensslen has his own suggestion as to who should be paying. "Split it down the middle," he told ABC News. "They both played, so they should both pay."