Archive for the ‘Mediation’ Category

Editor’s Note: This article, authored by Elisabeth Edwards, appeared on October 18, 2017 on the Family Law News Tip of the Week on the Indianapolis Bar website.  

Most family law cases will end up seeing the inside of a mediator’s office at some point.  Love it or hate it, mediation is required in many counties and can even be a prerequisite to getting a trial date.  Whether you have a full day mediation scheduled or are taking a case to a Marion County Modest Means mediation with a three-hour limit, there are ways to make it more likely that your client’s case will settle.  Having mediated more than a few cases, I offer the following advice on making mediation date more productive and valuable for the benefit of your client.

  1. Clue In Your Mediator. Send your mediator something that resembles a Confidential Mediation Statement.  While you don’t have to put together a multi-page statement with 12 attachments including the full 62-page GAL report (Please don’t send that!), sending some sort of statement as to what’s going on with the case will be helpful.  Or if you don’t have time (or your client can’t afford anything fancy), call your mediator!  A 5-minute or less telephone call can make all the difference.  The most valuable information you can give your mediator includes the basic legal issues and the “elephants in the room” that are not necessarily legal issues or facts that will be relevant at hearing, but which need to be addressed at mediation.  If you have a client with whom you have been “keeping it real” about his chances at court and he refuses to listen to you, let your mediator know that.  If there are allegations of an affair and there are issues of shame, denial, anger and hurt, that information is important to share.  It helps your mediator understand the dynamics of the parties and the mediator can structure negotiations accordingly.

 

  1. Do Some Basic Prep Work. Show up to mediation ready to address the issues that are being mediated.  While that seems obvious, it is actually common to see attorneys come to mediate a child support modification without paystubs, tax returns or any information about income for their clients.  It’s also common in divorce mediation to find that neither attorney has made a basic list or spreadsheet of the assets and debts to be divided.  Your mediator doesn’t necessarily mind being the conduit for information if something was overlooked or has changed.  However, when you spend the first 4 hours of a full-day mediation just trying to pull together enough information to calculate child support or create a list of marital assets, there is less time to talk settlement.  These are the cases where clients end up upset that they “wasted their day” and disgruntled that they still have to pay their attorney and the mediator.  Carve out time ahead of your mediation to make sure the case is properly worked and that your opposing counsel has what he/she needs to move the case forward.

 

  1. Don’t Just Pencil Mediation on Your Calendar. Treat mediation like you would a full-day trial.  You and your clients need to block the full day and be prepared to stay and work.  Everyone has experienced the havoc of a last-minute emergency hearing or other unknowable event.  However, if you are leaving a hearing or other appointment on your calendar for a day that your client, the other party, the other attorney and the mediator have all blocked to work on this case, you will quickly get a reputation you don’t want.  If something last minute and unmovable comes up on your calendar, RESCHEDULE your mediation.  It’s that simple.  Treating mediation seriously sends the message to your client that it is indeed serious.  When you spring on your mediator at noon that you suddenly have to leave at 12:30 P.M., there is a good chance that your client’s case will not settle.  This is unfortunate for your client who took the day off work to be there.  Springing a “scheduling conflict” on everyone the day of mediation is, frankly, rude and disrespectful.  It makes you look disorganized and gives your client the impression that her case is a low priority for you.

 

  1. Set Your Client’s Expectations. Your mediator is prepared to do some “reality testing” with your client, but that should not be the first time your client is hearing how absolutely unreasonable his position is and how the possible legal outcomes include things that are very undesirable.  Don’t set up your mediator to be the sledgehammer on your client all day because you have not reviewed the scope of possible outcomes before walking in the door.  This causes your client to think your mediator is being positional, when your mediator is merely trying to move both parties to a place somewhere in the middle.  Unqualified victory at trial is promised to no one, and sometimes your client’s worst day in court is something with which she can’t live.  Educate her before you walk into mediation so that she is not unreasonably stuck before even starting.

 

  1. Start Typing. Just because there is general agreement as to all the issues, the mediation is not over.  You still need to put all of the agreed-upon terms into an agreement that the court will accept.  If possible, take a laptop and a skeleton of an agreement to the mediation.  Throughout the day, update the agreement as terms are agreed upon.  Let’s face it, mediation generally contains sufficient down time to get this done while the mediator is in the other room.  When full agreement is reached, email a draft agreement to the mediator or hand over a thumb drive.  This simple step will save lots of time at the end of the day.  Since time is money in mediation, your client will appreciate the effort.

While not all mediations result in settlement, some cases which should settle don’t settle because of the actions of the lawyers.   With these tips in mind, please help your mediator help you.  These simple tips maximize the generally very expensive time that your client is spending in mediation and make it more likely that mediation will result in an agreement.  As always, keep the best interests of your client at the forefront.  Your client’s family law matter is perhaps the most important thing happening in his or her life at that moment.  Treating mediation as a crucial part of the case progress helps your clients resolve important issues and helps you develop a reputation as a prepared and competent advocate.

 

Why Wait? Arbitrate!

March 1st, 2016 by Wanzer Edwards

In 2005, Indiana adopted the Family Law Arbitration Act to provide an alternative to “litigation as usual” in most kinds of family law cases.  Why isn’t this the way cases that can’t get settled in mediation are reaching resolution? Perhaps it’s because most people don’t know enough about it. Here are the top 4 reasons you should be arbitrating your disputes:

  1. It’s Faster.

When you select an arbitrator, you are selecting a mediator or a family law attorney who presumably wouldn’t be accepting the case unless he or she had the time to devote to it.  Rather than dealing with a congested court calendar which may result in getting the full day trial you need 6 months later, the arbitrator can likely hear the case within the next month or even within days. Work schedules for the parties and calendars for attorneys can be considered, resulting in no continuances of the hearing. Attorneys can agree on exhibits and testimony and relax the rules of evidence so as to avoid multiple witnesses at hearing. After the hearing, Indiana law requires that the arbitrator issue an order “not later than 30 days after the hearing,” which may be extended to 90 days, if both parties consent. This may mean that a dispute which would be raging for months, if not years, can often be managed in a few months.

 

As an added bonus, by cutting down the time between the initial filing and the hearing, and avoiding numerous continuances and perhaps bypassing witnesses, parties can expect to conserve attorney fees.

 

  1. It’s Private.

Unlike in the courtroom, there is no audience in the arbitration hearing room. All evidence which would be presented is confidential and will be kept by the arbitrator and returned to the parties afterwards. While there can be a recording made of the hearing, it is not a requirement, and testimony will be considered confidential. This means that if there are sensitive issues such as mental health problems, addictions and the like, the “gory details” surrounding them will never see the light of day and be part of the public record.

 

  1. It Gives You Options.

When you have a traditional hearing, it will be heard by the judicial officer in charge of that particular court. Attorneys can request changes of judge, but there are limits to the number of times and the timing that a change may be requested. With arbitration, attorneys can select an arbitrator based upon demeanor, gender, and specific experience. Are there complicated issues involving a family business, for example? Then a panel of arbitrators can be used so that there is an “expert” on the family law matters, and an expert on the business matters, rather than trying to educate the judge on everything and hope that the information was clearly delivered.

 

For some cases, the parties have reached a full settlement agreement but are concerned that their creative choice for how to divide assets, for example, may not be approved by the court. The arbitrator can approve the parties’ settlement agreement which then “shall” be accepted by the Court. Now the parties can craft the agreement that best meets the needs of their family, rather than worrying about following traditional court remedies.

 

  1. It’s More Comfortable.

Going to trial is usually not fun for anyone. Even walking into the courtroom or hearing room can cause some parties significant stress and anxiety, making an already stressful experience even worse. Arbitration hearings can be held at the office of the arbitrator or one of the attorneys, in the comfort of a conference room. The arbitrator can allow for breaks when needed, snacks and lunch as desired, and a more relaxed and calm atmosphere.

Think your case may need help from a decision-maker but don’t want to go to Court?  Have your attorney contact WE Law to schedule your arbitration today.

 

Don’t Let the Dog Eat Your Homework!

October 13th, 2014 by Wanzer Edwards

That’s right….homework! When you are going through a divorce, paternity or post decree case you will have some work to do to help your attorney prepare to properly represent you. While you will not be graded on your response, the “final exam” is your settlement negotiations, mediation or trial where all the important information your attorney needs will be used to resolve your case. So your homework grade does count!

Common documents that your attorney will request include tax returns, pay stubs, insurance costs, daycare receipts, medical bills, bank statements, retirement statements and the like. Generally your attorney will need documents from a specific date range, so be careful what you gather. Sometimes, the opposing party presents you with requests for documents and questions that you need to answer under oath. You must provide to your attorney for purposes of answering these requests all documents in your possession that meet the requests and all documents to which you have access which meet the requests. That means that even if you do not receive a paper bank statement, if you are capable of getting online and printing one off, you are considered to have sufficient access that you need to obtain the document. Sometimes you may need to make a phone call to obtain documents. Rest assured, if your attorney is asking for a specific document, it is needed.

Many counties require a sworn statement of financial condition called a Verified Financial Declaration. This is a form document created by the court, which includes information about income, expenses, assets and debts. This document is required to be completed under oath and to be filed with the court. While it is a pain to pull the information together and to complete this document, it is a task that all litigants must go through. If you have trouble with it, talk to your attorney for help and guidance. Ignoring the form or filling it out in a haphazard or incomplete way will not save time and energy since your attorney will simply have to return it to you to fill in the blanks. When your attorney has to back up and ask for a redo, it costs you additional time and attorney fees. Put in the work getting a complete form the first time, and you can check it off your list!

Remember that your attorney is your partner and advisor through your case. If your attorney needs something, trust that it is necessary to provide. Organized clients who quickly and thoroughly complete their homework see it pay off when their attorneys have to spend less time chasing information. That results in a lower attorney fee bill. That is better than an A+ grade!

Choosing An Attorney

September 9th, 2014 by Wanzer Edwards

So you think you may be heading down the path of a divorce. Or maybe it hit you like a ton of bricks – you just got served with papers from your spouse. Your spouse has an attorney, so you probably need one too, but who?

Selecting your attorney is an important choice, and one that should not be taken lightly. Your attorney is going to be the person helping to guide you through one of the most painful transitions you may face. He or she needs to know what they’re doing and be able to advise you of all your options, rights and responsibilities.

First, ask your friends and family. The very best referrals are often firsthand from someone who has been through what you’re going through. After you have some options, check them out online to ensure that the attorneys you are considering practice family law exclusively, or at least as one-half of their practice.

Next, you need to decide what kind of case you want to have. Do you actually want to go to court? Then it’s important to look at the attorney’s website and speak with him or her about their trial experience. If they have never been in the courtroom, they may not be the best choice for you. If you want to try to avoid court at all costs but the attorney’s website is filled with words and themes about fighting for their clients, winning at all costs, or how “tough” he or she may be, then that may not be the best choice for you either. Do you have a specific desire to mediate or divorce using Collaborative Law? Be sure that the attorney you choose is trained to offer you those practice options and has the credentials to prove it.

Finally, you need to meet with your attorney and see if your personalities mesh. Consider it an interview for a legal expert that you want to hire. Your attorney should be like a good friend – someone who is not afraid to give you hard news and play devil’s advocate with you. Your attorney’s job is not to tell you yes, but to inform you of what your very best and very worst outcomes may be, and then to guide you toward a conclusion that works for your family. If he or she doesn’t warn you of the worst thing that could happen if you go to court, for example, keep looking.

If you are looking for an attorney to handle your case and are not sure where to start, set up a consultation with one of the family law attorneys at Wanzer Edwards.