Category: mediation

Why I hate New Year’s Resolutions…

Posted by Sharon O'Day on December 29, 2014 with 1 Comment

I know. I’m lazy. But I made myself a New Years resolution that I would write myself something really special. Which means I have ’til December, right?

Catherine O’Hara

We all know the drill. That magic date is fast approaching: January 1^st. A new beginning. A chance to start over. And in honor of the date, we make New Year’s Resolutions. We make a firm commitment to do or not do something (One of Webster’s definitions of “resolution”). “I resolve to lose 30 pounds”. “I resolve to stop smoking.” “I resolve to save money this year.” “I resolve to have a better relationship with my kids.” We say the words and we take some initial action to make it happen. Maybe we join the gym, or buy Nicorette gum, or make a new budget, or announce to our family that we are going to be more available to them. Have you ever noticed how full the gym is on January 2^nd? But these resolutions rarely ever work. Have you ever noticed how empty the gym is again by January 30^th?

I too have tried the New Year’s Resolution game and I too have failed. But that fact just puts me in the majority. According to a 2007 University of Hertfordshire study, 88% of resolutions fail. So, if these big proclamations are bound to fail, why try? Well, the basis of trying to be better, of doing things we know are good for us or not doing things we know are bad for us is a worthwhile endeavor. The point is to find a way to set ourselves up for success rather than failure. To set resolutions and then fail at them can actually be harmful. It can lower self-esteem and further a feeling of inadequacy.

So, how do we set ourselves up for success at self-improvement? Studies have shown that there are some ways to achieve lofty goals and make major changes. After all, 12% of resolutions actually succeed. Here are some hints to make better resolutions that just might work:

Set specific goals. If your goals are too vague they are harder to quantify and achieve. Rather than “I want to lose weight”, “I want to save money” or “I want to have better relationships”, set measurable, specific goals. How much weight, how much money, in what ways should relationships improve? Make your goals measurable and attainable.
Know your Whys. I have often discussed that for negotiations the question “why?” can be critical. It is for resolutions as well. As you think about the goals that you want to set, be very specific about why these are your goals. What will you gain if you accomplish your goal. Many people talk about losing weight so that they can see their children graduate from high school, or saving money so that they aren’t forced to eat cat food as their main protein source in old age (okay, that is my reason.) Picture your life when the goal is achieved. How will it be better. Make the image vivid and glorious. Dwell on this image and the things you will have when the goal is accomplished. Imagine the joyous time you will have travelling the world in retirement or how fun it will be to play with your children without being out of shape. Make your “whys” more important than your “why nots”.
Break the goals down to smaller and smaller steps. Resolve to just not eat sugar for today. Resolve to give up one Grande Macchiato Latte per day and save the $6.00 in a drawer each day for a month. (Sorry fancy coffee shop, but I think you will survive.) Resolve to have fun with some exercise just for today. Then tomorrow wake up and resolve to take one more step towards your goal. There is a reason why the successful organization of AA (and all the other Anonymous groups) use the “one day at a time” motto. If you can string enough successful days together you will develop a habit that becomes a new way of living. You only have to string together the majority of 365 days to have an extremely successful year.
Do not make too many changes at once. Another study, this one by Stanford University, tested subject’s ability to make good choices when their minds were busy with a difficult task. Some subjects were asked to memorize a two digit number and others were asked to memorize a seven digit number. After having some time to work on memorizing the number the subjects were told to walk down a hall and report the number. On the way down the hall they were offered some fruit or chocolate cake. The subjects with the longer number were twice as likely to take the cake over the fruit as the subjects with the shorter number. The professors found that when your brain is busy trying to do a difficult task you are less likely to have the cognitive ability to make good choices. (This is my go to excuse for taking the chocolate cake every time – I am just doing too much with my brain.) Therefore, try to limit the goals to just one specific, attainable goal at a time. Don’t make your brain work so hard at trying to change everything at once.
Celebrate your success and forgive your setbacks. When you attain a short term goal celebrate. Perhaps seven days of saving the funds from your Latte warrants an extra 30 minutes of TV in the evening. Or after losing five pounds you should buy yourself a new set of running shoes. But if one day you fall off the wagon and eat the cake, don’t beat yourself up. This is not failure, this is a setback. If your child came to you and told you that she did not achieve her goal for one day would you berate her and tell her that she was a failure and should stop trying? (If you answer yes to this question, then perhaps we should have a talk about positive parenting.) Of course not, you would tell her that you are proud of her trying to better herself and you know she can succeed when she gets back on track tomorrow. So, be as nice to yourself as you would be to your child. Don’t beat yourself up. Every successful person has failed hundreds of times before they accomplished their goals. If you question your ability to succeed, check out the list of 50 famous “failures”. http://www.budbilanich.com/50-famous-people-who-failed-at-their-first-attempt-at-career-success/
Develop a social support system. You may have a hard time recognizing your accomplishments but others will surely see you trying and help you celebrate your success. I have several friends that are working hard at getting in shape. We still occasionally go out for “drinks” after work. However, they drink water and order salads. I am thrilled for them and honor their accomplishments. If you have friends that don’t celebrate your goals for self-improvement then maybe you have the wrong friends at the wrong times. You can still be friends with these folks but just don’t include them in activities where they can sabotage your forward movement. You have to know your temptations and include friends and family members in ways that will support you in overcoming them. You can also use your goals to develop new friends that support you. Join a club that supports your goals such as a runners club or a weight watchers group or an investing club. You will have a chance to meet others who have succeeded, learn from them and celebrate your successes with like-minded people. These folks can hold you accountable and be a coach through hard times.

Okay. So I don’t actually hate New Year’s Resolutions. I just hate ones that are set up for failure. I try to make resolutions regularly in my life. Some are more successful than others. None are done just once a year on a magic day in the middle of the winter. I do like to use this magic time to review last year’s goals and celebrate the successes. Then I examine the places where I may not have accomplished my goals and see how I can better work towards success. Finally, I plan my next year out with overall goals, manageable steps to accomplish these goals and planned rewards for my success. (Yes, I like the word success Just saying it makes me feel successful.) This works for me. My sincere hope is that it will work for you and 2015 will be your best year ever! Happy New Year!

The “Ladder” of Divorce

Posted by Sharon O'Day on May 10, 2014 with 2 Comments

I often explain to potential clients that the divorce process is somewhat like a ladder. The rungs on this ladder relate to the formality involved in the process.

The lowest rung would be the least formal and would correlate to the couple that is able to sit down at the kitchen table and work out the details of their divorce between themselves. In Florida they could then use the forms published by the Supreme Court (found here) and file the case with the court for final approval.

The next rung would correlate to a couple that may need more assistance, a couple that may want help in drafting the agreement or who cannot calmly work out the details without some professional assistance. In this case the couple can employ a mediator and, with the help of a skilled facilitator, work out the details of their divorce. This couple may decide to each retain legal representation to review the agreement after it is drafted or even to attend the mediation, but they determine early on that they will not litigate and do not need court intervention to reach an agreement.

The next rung would be occupied by a couple that struggles with a lot of issues such as developing a parenting plan, division of assets and ongoing support. They may need more formal structure and advice from separately retained counsel. The problem is that many couples skip an available rung and end up consulting litigation lawyers who advise them to begin the litigation process. This is a problem because the couple have now developed an adversarial posture by filing accusatory pleadings. The attorneys, because of their training and historic roles, often serve to increase the conflict through adversarial style of advocacy. Even as the attorneys work with the clients to resolve the case, they are constantly strategizing how the case will be tried in court if resolution fails. The parties have missed the “next rung” on the conflict resolution ladder — collaborative representation.

In the case of collaborative procedure, the parties would each retain legal counsel but the attorneys would be committed to working with the other professionals as a team to resolve the issues and minimize conflict. Being a trained collaborative attorney I can tell you there is a substantial difference when the parties have one financial expert whom they both trust, one mental health facilitator whom they both work with and two attorneys treating each other with respect and working towards a settlement without any motivation to prepare for possible trial. It truly is a “paradigm shift” for the attorneys. The collaborative process should be considered as the next rung on the dispute resolution ladder prior to any advice to consider litigation to resolve the case. Not every case may be appropriate for collaborative resolution, but too often this option is not even presented to the parties and they miss the opportunity to maintain control over their lives and the outcome of their divorce.

Collaborative Practice is also very different from the mediations that take place after many months of litigation and trial preparation. Often the parties in these cases have attended temporary hearings where they have become agitated and hostile. They have exchanged adversarial pleadings and answered extensive discovery requests. By the time they arrive in mediation each side has developed a hostile position for the negotiations. Often these cases start mediation with each side sitting in separate rooms with their attorneys and the mediator shuffling back and forth doing the “give and take” dance with the parties. There is a reason that many mediators often start these mediations with the advice that “if you both leave here unhappy then we have a good agreement” The parties have often invested so much in the conflict that their compromises are painful and hard fought. This too is different than the collaborative process where looking for creative solutions starts from day one.

If the collaborative process is unsuccessful, the parties can still climb the ladder to the last rung and resort to litigation. The couple will then turn their lives over the the straight-jacket structure of the laws passed in the state capitol and the formality of a court room. Evidence will be restricted by rules and the judge will make the ultimate decisions about how to resolve the conflict.

Step Five: Time to Negotiate!

Posted by Sharon O'Day on April 13, 2014 with 0 Comment

“The dog’s agenda is simple, fathomable, overt: I want. “I want to go out, come in, eat something, lie here, play with that, kiss you. There are no ulterior motives with a dog, no mind games, no second-guessing, no complicated negotiations or bargains, and no guilt trips or grudges if a request is denied.”
― Caroline Knapp

It is a tradition in my family that, when we receive a new and somewhat complicated item, we often dive right in to assembling it without ever reading the instructions. This has often been to our own peril. The instructions are there to make your life easier. The same is true for negotiations. Hopefully you have had an opportunity to read the first four steps in the process as they are there to make the day of negotiations much easier. As a review, before you ever come to the negotiations table you want to assess your interests and the interests of the other parties. You then want to brainstorm options to meet the interests of the parties. You must then research the options to determine which ones are feasible and how well they meet your interests and the interests of the other party. Finally, before you begin the actual negotiations, you want to make sure that the ground rules of the process have been agreed upon. Once all of this is completed, it is time to negotiate.

You are well prepared for the negotiations by knowing your interests, your options and the tools that will get you where you would like to be. You must keep in mind throughout the actual negotiations that the ultimate goal is to reach an agreement or to know that you made your best effort but that an agreement was not possible. Not all negotiations will result in an agreement because one side or the other felt that they could do better without the agreement. However, if an agreement is possible you want to continually work toward the end goal.

Some feel that an agreement is only possible if everyone gives up something and no one leaves with everything they want. I find this type of “search for the lowest common denominator” type of negotiations to be defeatist. While compromise is an important part of negotiations, by working collaboratively toward meeting the interests of the participants, the parties can often find ways to expand the pie and meet the key interests of everyone. It is true that at times each side may have to compromise on some item that they wanted, these decisions can be made in the spirit of reaching a deal that will work for everyone. Some key elements to negotiations are to keep your emotions in check and keep your focus on the end results. It is often easy to become frustrated when the other side uses negotiation techniques that are counter-productive such as bullying, dishonesty, or focusing on the past as a victim. However, with some strategic planning you will hopefully be able to stay at the table and reach a satisfactory agreement even with the most difficult party.

The first step is to make sure that everyone has agreed to the issues to be decided. In mediation this is done by setting out the agenda. Even if a formal agenda is not decided upon, it is good for you to have with you a list of the items that you need addressed. The fastest way to destroy an agreement reached after long negotiations is to suddenly raise a new issue that has never been discussed until after the parties are concluding the negotiations and are ready to sign an agreement.

It is often good to start the negotiations by considering if there are items where the parties have an agreement or are close to an agreement in priciple. In a divorce if both parties agree that the children should spend equal time with each parent then this is an agreement that can be checked off the list. The parties may still need to discuss and agree upon the actual time sharing schedule, but the interest of the children spending equal time with each parent is a major decision. By reaching the easier agreements first you will develop some momentum towards addressing the harder issues.

Often inexperienced negotiators will ask “who should make the first offer?” There is some debate on this topic, with some experienced negotiators believing that the person who makes the first reasonable offer has established an “anchor” and is in a better position, while other negotiators prefer to allow the “other” party to make an offer so that they can counter close to their position and pull the first party to their ground. Entire books have been written regarding these strategies of negotiation. However, in the case of principled negotiations, the reality is that if each party is motivated to find an agreement then the order of the offers will not have as much effect as the reasonableness of each side to consider the interests and positions of the other.

As the negotiations move forward there are some strategies that help keep the process on track. The first is perhaps the most important. This is to keep your focus on interests and energy toward resolution. When you begin to feel anxious, angry or any negative emotion, step back and take a minute to process. The biggest impediment to productive negotiations is often the visceral reaction. For example, in a divorce negotiation if you ask for equal time sharing and your spouse responds by attacking you and criticizing the fact that you never took an interest in the children before and proposes that you should only have every other weekend with the children, it would be easy to respond to the attack and argue about who took care of the children more or attack back by saying that your spouse was always controlling of the children and never let you be a part of their lives. This will cause the negotiations to spiral into a battle for which there will never be a winner. The better response would be to take a minute to absorb what was said and think about your reply. Consider your interests (and your spouse and children’s interests) in the issue and develop your response. You may find that agreeing with your spouse that you did not put enough time into parenting in the past but discussing how you want to change this and feel that the children would benefit by having two actively involved parents is a better approach. Look at the full calendar and discuss how the time can be managed to allow each of you to have the most time with the children.

It is often also easier to consider each agenda item individually. Work out one item before moving on to the next. This will allow each party to focus their attention on the interests involved and avoid “cross contamination” of very sensitive or emotional items with the ones that may be easier to address. Keep in mind that not all negotiations must be resolved in one day. While simple issues may be addressed in one sitting, complicated negotiations such as divorce or other family issues often require several sessions to come to a complete resolution. If the parties try to cram all the negotiations into one day they may find that they are reaching agreement only to end the emotional roller-coaster or out of sheer exhaustion.

If certain issues seem impossible to resolve consider bringing in additional help. A respected neutral family member or spiritual leader or a professional mediator may assist the parties to break an impasse and reach a final resolution to the issues. Be cautious that the person selected understands that their role is to be a neutral facilitator of the conversation and not a “judge” or arbiter of the conflict. The confusion of the roles of a neutral is why it is often better served by a professional.

A Cautionary Tail

Posted by Sharon O'Day on April 7, 2014 with 0 Comment

Lawsuit: A machine which you go into as a pig and come out of as a sausage.

Ambrose Bierce

The front page of the Sunday Sarasota Herald-Tribune was filled with an extremely sad story entitled Love & Lawsuits, by Barbara Peters-Smith. (http://www.heraldtribune.com/article/20140406/ARTICLE/140409778/2416/NEWS?Title=First-came-love-Then-the-litigation-) The subtitle says it is the story of “a Longboat Key couple found true love late in life. But what might have been a happy ending has instead morphed into an epic lawsuit with millions of dollars on the line, and long, bitter legal arguments made mostly by strangers.” The story covers much of the front page and two full interior pages and I highly recommend that it be read in full to have a complete understanding of the facts and issues. For purposes of this brief post, the important facts are that after many happy years of marriage, allegations have been made that the elderly couple suffered from dementia and that relatives began to take advantage of them financially. Both the Husband and Wife had attained some level of wealth, although the Wife was substantially better off than the Husband. The allegations are that the Husband’s family members then began to take advantage of the couple and had transferred millions of dollars from the Wife, through the Husband to the Husband’s relatives.

For purposes of this post, the cautionary tail that I see is how the internal problems of this blended family have turned into a very public and very expensive legal battle, destroying any hope that the couple had to live out their final years in happiness together. The family members have now divided the couple and each lives near relatives but apart from each other.

On one side it is easy to say that this couple had done everything right as befitting their wealth. They had a prenuptial agreement and estate planning documents. They reviewed and updated these documents as needed. However, the allegations are that by 2005 the Wife and perhaps the Husband were suffering from early stages of dementia and some relatives began to take advantage of them. My first concern from this is why did it then take six years for any relative to realize what was going on and intervene. I do not mean this to be as judgmental as this may sound. I realize that every individual and every family is different in how they address financial issues, but in this case perhaps the long costly court battles could have been avoided had there been more direct involvement and conversations when concerns were first noticed of the couple’s failing health.

My second concern is that mediation did not take place in this case until after it had been pending for over two and half years. The mediator in this case is extremely professional and one of the best around. Unfortunately the case did not settle. The timing of a mediation is a careful balancing act. Often if the mediation is set too early the parties may not understand the full ramifications of the case and be unwilling to settle. However, if it is set too late, after each side has become cemented in their positions and invested vast amounts of money in the litigation, they may be too entrenched to consider settlement. However, mediation can begin early and continue throughout litigation. Much of the issues provided to the judge can be resolved through careful mediation. There does not appear to be other forms of alternative dispute resolution services employed in this case. The end result is a legal battle played out in public and the concerns for the elderly couple seems to have been lost in the process.

The law suite was filed in May 2011 and now has 1,675 docket entries (that is documents filed, orders issues, or notices of court hearings, etc.) There are fifteen lawyers involved in representing parties to this case. The case will have taken over three years from start to finish and that does not include possible appeals from the final decision. Two of the defendants have died and one of the previous attorneys is now allegedly suffering from dementia as well. Ours is a wonderful legal system but this case shines a bright light on the deficiencies of the system. I have seen divorces take on a life of their own and spiral out of control. It appears that this very sad guardianship case has done the same.

Things a Judge Cannot Do…

Posted by Sharon O'Day on March 17, 2014 with 1 Comment

Things a Judge Cannot Do….

Best Lawyer Quote

Posted by Sharon O'Day on February 12, 2014 with 0 Comment

“My joy was boundless. I had learnt the true practice of law. I had learnt to find out the better side of human nature and to enter men’s hearts. I realized that the true function of a lawyer was to unite parties riven asunder. The lesson was so indelibly burnt into me that a large part of my time during the next twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing thereby — not even money, certainly not my soul.”

Mohandas K. Gandhi, 1957 from “An Autobiography: The Story of My Experiments with the Truth”

Although there are many quotes from great lawyers that remind us of our calling to serve and assist our clients, this is my favorite. At a time when lawyers are too often the punch line in jokes, it is, I believe, helpful to remember the true good that the vast majority of our profession does on a daily basis. I aspire to be a peacemaker for those who have hired me as a professional and to serve them in finding resolution to conflict.

Collaborative Law: What It Is & Why I Should Care?

Posted by Sharon O'Day on January 13, 2014 with 1 Comment

Many family law attorneys have heard the buzz about “collaborative law.” Other lawyers may not have heard much if anything about this new process. Many circuits in Florida now have Administrative Orders defining collaborative law, and the Florida Bar is working to establish statewide rules which will govern the process. Therefore, this is a good time to become conversant with collaborative law, and to learn how it might apply to your practice area.

Collaborative law has been around for twenty years nationally but only recently started reaching us locally in a big way. Where the relationship of the parties is an important element of the legal dispute and where there are emotional drivers, the lawyer should consider a collaborative approach as an appropriate method of dispute resolution. An obvious choice for using a collaborative approach is a family law case involving minor children. When minor children are involved, the parties will have to maintain a relationship if only to co-parent their children. Several studies establish that children who have been the subject of high conflict divorces are at significantly greater risk of experiencing both short and long term emotional and psychological issues. The sooner divorcing parents can settle their disputes and transition to co-parenting, the sooner they can focus their combined efforts on helping their children adjust to the new family dynamic.

Divorces with minor children are but one of the types of legal matter that may benefit from a collaborative approach. Probate cases, elder law guardianships, family-owned or closely-held business dissolutions, and other legal cases involving people with long term ties also may benefit from using a collaborative model.

The collaborative model removes the dispute from the entire court system. A collaborative team is established, consisting of a lawyer for each participant, and a collaborative facilitator. In many cases, the team also might include a neutral financial expert and a neutral mental health expert. Using a divorce as an example, each party would have a specially trained collaborative attorney, led by a collaborative facilitator who acts as the neutral, focal point of the process and who assures that the dispute proceeds in an orderly and respectful manner. This person is often, also, the mental health expert for the team. The neutral mental health expert will assist the parties’ with their emotional needs and, if relevant to the case, address parenting issues with the parties. If there are financial issues, the parties may hire one financial expert to work with them to prepare their financial affidavits and address other financial aspects of the case.

The primary difference between a collaborative case and a litigated case is that, in collaborative, the parties and the professional team all sign a contract agreeing that they will work together to resolve their issues without litigation. The parties make an agreement to fully and honestly disclosure information related to the case. There is no “hide and seek” or ambushing in a collaborative case. Additionally, participants agree to be respectful of each other and avoid all disparaging comments. If there are minor children involved, the parties agree to insulate them from the proceedings and to otherwise work together to minimize the impact on the children.

The agreement specifically states that there will be no litigation during the collaborative process. The only way that the case will proceed to litigation is if the parties withdraw from the process. If this happens, then all of the professionals on the team must withdraw and cannot be involved in a subsequent, litigated case. This usually leads many professionals to decide that this collaborative work is not for them. While the objection is understandable, the attorney is well-advised to consider collaborative practice as one of the tools in the attorney’s toolbox nonetheless. The possible withdraw of the attorneys is the “stick” that keeps everyone honest and at the table, and prevents the posturing that many of us have come to expect in a litigated matter.

In collaborative, no one threatens to file pleadings to gain advantage. Instead, the parties look for win-win solutions which can be reduced to an agreement. Professionals must go through separate training to work in a collaborative case. One is trained to undergo a “paradigm shift,” meaning that one learns to look at the dispute from a solution-oriented approach rather than from a “what is my best day in court” approach. The professionals are bound to respect that the parties have agreed that they want to find solutions via a collaborative process, and it is the professionals’ job to get them there.

.Over ninety percent of collaborative cases settle, and such a settlement may be maintained privately, which is another advantage. This is why celebrities such as T. Boone Pickens, Roy Disney, and Arnold Schwarzenegger have all chosen collaborative divorce over having their divorces litigated.

If you are interested in learning more about collaborative law or becoming trained as a collaborative attorney, there is a training scheduled in Tampa, March 20-22, 2014. Please contact the Family Court Professional Collaborative for more information.