For most of my clients, the mediation they attend for their divorce is the only mediation they will attend during their lifetime. Understandably, clients have many questions about the process and what to expect. Here are some of the most common questions I receive:
1. What is the difference between mediation and arbitration?
While both processes involve the use of a neutral third party, the neutral in mediation, the mediator, helps facilitate an agreement between the parties while the neutral in an arbitration decides what the resolution will be. The arbitrator essentially acts and the judge or jury in the case. As case is resolved at mediation only if the parties come to an agreement.
2. What is the format of mediation?
Generally, at mediation, both parties and the mediator initially meet together around a conference table. At that time, the mediator reviews the rules of mediation with everyone. Then each side, usually through the attorneys, inform the mediator of the issues to be resolved in the case and a general overview of the facts and arguments. This is the first time the mediator will hear anything about the case. The parties then “caucus”, which means that each party sits in a separate room, accompanied by their respective attorneys. The mediator acts as a “ping pong ball” moving back and forth between rooms until a settlement is reached. The initial meeting with each aide can be lengthy but subsequent meetings usually become shorter as the issues narrow and less background information is needed. If the parties agree to a settlement, the terms are reduced to writing and signed by the parties.
3. What if we don’t settle the case—will the judge or jury find out what I was willing to offer?
No, the mediation process is completely confidential and settlement negotiations are inadmissible in court. Neither party may call the mediator to testify in their case. Each party may also give background facts or strategy information to the mediator and, if they so specify, the mediator cannot repeat these facts or information to the other side. Offers of settlement, however, can be revealed to the court in the context of attorney fees after the substantive portion of the case is resolved to show that a party drummed up the fees by being unreasonable.
4. I do not want to see my spouse at mediation—can we avoid the initial meeting?
Most mediators will agree to meet with only the attorneys for the initial meeting if either party is apprehensive about a joint meeting.
5. Can my case settle if it doesn’t settle at mediation?
Yes. Many cases that do not settle at mediation eventually settle either at a subsequent mediation or by the exchange of written settlement offers between the attorneys. Sometimes cases do not settle at mediation because one or both of the parties are not ready. One way to help make sure your case will settle at mediation is to wait to mediate until you and your attorney have all of the information that you need to settle the case and you are emotionally ready to settle the case.
Friday, January 27, 2012
Wednesday, September 28, 2011
Finding the Right Divorce Attorney
No two divorce attorneys are alike. Yet, many litigants do not realize how important the selection of their divorce attorney is to not only the outcome of their case, but also to how their case progresses from start to finish.
The early stages of a divorce are often the most stressful causing many to make a decision about which attorney to hire in haste. Therefore, it is not surprising that many people change attorneys during their divorce even though making a change can be costly. Indeed, half of the cases I handle at any given time are cases that I have taken over from another attorney.
Here are some tips to help you make the right choice:
1. Reach out to trusted sources. There is no substitute for word of mouth when it comes to hiring an attorney. Financial advisors, therapists, non-divorce attorneys and CPAs usually know good divorce attorneys, as do people who have been divorced in the last couple of years.
2. Identify the potential need early. If you know a divorce is or may be on the horizon, it is worth your time to meet with a divorce attorney so that you are familiar with one that you like before you are in a high-pressure situation to file or you are served with papers. At that point, your selection may be driven by who has the time to meet with you. Also, if your spouse meets with any attorney in a particular law firm before you do, no lawyer from that firm will be able to meet with you because it will be a conflict on interest.
3. Hire a specialist. Attorneys that specialize in family law/divorce cases are best situated to properly assess your case because they know the judges and the other divorce attorneys and have the most relevant experience to handle your case efficiently. They also are more up-to-date on changes in the law.
4. Ask questions of the attorney. At your initial consultation, bring a list of questions with you so that you do not forget. A good attorney will appreciate your thoroughness. Suggested questions to ask:
a. How long have you practiced family law?
b. What percentage of cases do you settle?
c. What is your approach to settling a case?
d. What is your approach to a new case?
e. What retainer do you require up front?
f. Is any unused portion of the retainer refundable? I would suggest not hiring any attorney who will not fully refund the unused portion of the retainer.
g. Who in your firm will work on my case and how much will I pay for their time?
h. How often will I receive an accounting of my retainer? The answer should be at least once a month.
5. Ask questions of yourself. Your divorce attorney needs to get to know you very well. After your meeting, ask yourself the following questions:
a. Do you feel comfortable opening up to this attorney?
b. Do you feel intimidated?
c. Are they a good listener, or did they spend the entire time singing their own praises?
d. Do you feel as though this attorney will take a practical approach to your case?
e. Did they tell you anything you did not want to hear? This is actually a good thing! Attorneys do you a disservice if they only tell you what you want to hear. In a divorce case, there is always going to be information that you do not want to hear. You need to hear it. Unrealistic expectations generate lots of attorney fees.
6. Trust your gut. If something does not seem right, it probably isn’t.
The early stages of a divorce are often the most stressful causing many to make a decision about which attorney to hire in haste. Therefore, it is not surprising that many people change attorneys during their divorce even though making a change can be costly. Indeed, half of the cases I handle at any given time are cases that I have taken over from another attorney.
Here are some tips to help you make the right choice:
1. Reach out to trusted sources. There is no substitute for word of mouth when it comes to hiring an attorney. Financial advisors, therapists, non-divorce attorneys and CPAs usually know good divorce attorneys, as do people who have been divorced in the last couple of years.
2. Identify the potential need early. If you know a divorce is or may be on the horizon, it is worth your time to meet with a divorce attorney so that you are familiar with one that you like before you are in a high-pressure situation to file or you are served with papers. At that point, your selection may be driven by who has the time to meet with you. Also, if your spouse meets with any attorney in a particular law firm before you do, no lawyer from that firm will be able to meet with you because it will be a conflict on interest.
3. Hire a specialist. Attorneys that specialize in family law/divorce cases are best situated to properly assess your case because they know the judges and the other divorce attorneys and have the most relevant experience to handle your case efficiently. They also are more up-to-date on changes in the law.
4. Ask questions of the attorney. At your initial consultation, bring a list of questions with you so that you do not forget. A good attorney will appreciate your thoroughness. Suggested questions to ask:
a. How long have you practiced family law?
b. What percentage of cases do you settle?
c. What is your approach to settling a case?
d. What is your approach to a new case?
e. What retainer do you require up front?
f. Is any unused portion of the retainer refundable? I would suggest not hiring any attorney who will not fully refund the unused portion of the retainer.
g. Who in your firm will work on my case and how much will I pay for their time?
h. How often will I receive an accounting of my retainer? The answer should be at least once a month.
5. Ask questions of yourself. Your divorce attorney needs to get to know you very well. After your meeting, ask yourself the following questions:
a. Do you feel comfortable opening up to this attorney?
b. Do you feel intimidated?
c. Are they a good listener, or did they spend the entire time singing their own praises?
d. Do you feel as though this attorney will take a practical approach to your case?
e. Did they tell you anything you did not want to hear? This is actually a good thing! Attorneys do you a disservice if they only tell you what you want to hear. In a divorce case, there is always going to be information that you do not want to hear. You need to hear it. Unrealistic expectations generate lots of attorney fees.
6. Trust your gut. If something does not seem right, it probably isn’t.
Tuesday, August 9, 2011
Visions Divorce Resource: Visions Anew Supports Divorcing Attorneys
Here is a blog entry I recently wrote for Visions Anew...
Visions Divorce Resource: Visions Anew Supports Divorcing Attorneys: "By Carla Schiff, Esq. Stern & Edlin PC “You can’t come to work and just boo hoo” said Debra Chambers, an attorney with Swift Currie McGhe..."
Visions Divorce Resource: Visions Anew Supports Divorcing Attorneys: "By Carla Schiff, Esq. Stern & Edlin PC “You can’t come to work and just boo hoo” said Debra Chambers, an attorney with Swift Currie McGhe..."
Tuesday, July 12, 2011
The Latest Form of Deception: "Spoofing"
Technology often helps us catch liars and cheaters because there's an electronic stamp for virtually everything we do, whether it be emails, text messages, or swipe-in times at work or the gym. Unfortunately, technology also helps the liars and cheaters succeed. Indeed, one of the newer techniques in that regard is "spoofing," which is the act of disguising one's identity on caller id or email by misrepresenting the caller or sender as someone else. For example, if I want you to think I'm at work, I'll call you from my mobile phone while on the other side of town but spoof the number so it looks like I'm at work. Spoofing can also be used by stalkers to harass victims by falsely enticing them to answer calls and open emails that they would otherwise avoid.
Spoofing "apps" on phones can also be used to disguise voices.
Although the law cannot always keep up with the technology, there is a federal anti-spoofing law entitled The Truth in Caller ID Act, which was signed into law in December 2010. The Act prohibits masquerading the identity of the caller for the purpose of defrauding, causing harm, or wrongfully obtaining anything of value.
What's the lesson here? First, do not engage in spoofing. Second, be careful. Don't give personal information to a stranger that calls you regardless of whether the caller id indicates the call is from a reputable source. Finally, if you suspect your spouse is cheating, don't rule out the possibility that they may be spoofing to cover it up their actual whereabouts.
Spoofing "apps" on phones can also be used to disguise voices.
Although the law cannot always keep up with the technology, there is a federal anti-spoofing law entitled The Truth in Caller ID Act, which was signed into law in December 2010. The Act prohibits masquerading the identity of the caller for the purpose of defrauding, causing harm, or wrongfully obtaining anything of value.
What's the lesson here? First, do not engage in spoofing. Second, be careful. Don't give personal information to a stranger that calls you regardless of whether the caller id indicates the call is from a reputable source. Finally, if you suspect your spouse is cheating, don't rule out the possibility that they may be spoofing to cover it up their actual whereabouts.
Monday, January 17, 2011
Facebook: Learn to Play the Social Networking Game in a Divorce
While Facebook is a great way to connect with friends old and new, whether it is good for those in the process of “disconnecting” depends on how you play the social networking game.
How to be a social networking “loser”:
1. Think that anything you post is private—There is no privacy when it comes to the internet. You never really know who can see your Facebook posts. Can you trust each and every one of your 600 “friends” one hundred percent?
2. Post your whereabouts when you are not where you are supposed to be—Think about it, you’re in a hotly contested custody case and you switch nights with your soon-to-be ex because you have to work late and then you “check-in” at 11:00 p.m. at a bar (or, worse, an adult entertainment establishment). Enough said.
3. Brag about expensive purchases—Try explaining that to a judge when you’re asking to pay less alimony or child support.
4. Allow yourself to be tagged in photos that could be used to demonstrate that you aren’t where you’re supposed to be or with a new love interest.
5. Defriend your spouse and those close to them—As long as you are keeping your nose clean, why not use Facebook to keep tabs on your spouse’s activities? If they are not as careful as you are, you may hit pay dirt.
How to be a social networking “winner”:
1. Periodically double-check your privacy settings to make sure you are doing everything you can to keep everything about you as private as possible.
2. If you are tagged in any photos, be sure to untag yourself.
3. Less is more. Don’t update your status. Don’t post photographs. Don’t post your whereabouts.
4. Print! If you see ANYTHING that you think you could possibly use against your spouse, print it immediately. Otherwise, it may be gone next time you want to view it. Or, make it a habit of printing your spouse’s page periodically. Something that could seem meaningless now could have more meaning later.
When it comes to social networking, be smart, strategic and vigilant. Don't let your temptation to brag in front of your spouse about how great things are for you now that you're separated interfere with the outcome of your case.
How to be a social networking “loser”:
1. Think that anything you post is private—There is no privacy when it comes to the internet. You never really know who can see your Facebook posts. Can you trust each and every one of your 600 “friends” one hundred percent?
2. Post your whereabouts when you are not where you are supposed to be—Think about it, you’re in a hotly contested custody case and you switch nights with your soon-to-be ex because you have to work late and then you “check-in” at 11:00 p.m. at a bar (or, worse, an adult entertainment establishment). Enough said.
3. Brag about expensive purchases—Try explaining that to a judge when you’re asking to pay less alimony or child support.
4. Allow yourself to be tagged in photos that could be used to demonstrate that you aren’t where you’re supposed to be or with a new love interest.
5. Defriend your spouse and those close to them—As long as you are keeping your nose clean, why not use Facebook to keep tabs on your spouse’s activities? If they are not as careful as you are, you may hit pay dirt.
How to be a social networking “winner”:
1. Periodically double-check your privacy settings to make sure you are doing everything you can to keep everything about you as private as possible.
2. If you are tagged in any photos, be sure to untag yourself.
3. Less is more. Don’t update your status. Don’t post photographs. Don’t post your whereabouts.
4. Print! If you see ANYTHING that you think you could possibly use against your spouse, print it immediately. Otherwise, it may be gone next time you want to view it. Or, make it a habit of printing your spouse’s page periodically. Something that could seem meaningless now could have more meaning later.
When it comes to social networking, be smart, strategic and vigilant. Don't let your temptation to brag in front of your spouse about how great things are for you now that you're separated interfere with the outcome of your case.
Saturday, January 15, 2011
Dating While Your Divorce Is Pending
Once some clients have decided they want a "new life", they, understandably, want that new life to start as soon as possible. For others, the stress and isolation of divorce makes them want to seek out the emotional support of a new partner. Whatever the reason, clients often ask if it's okay for them to start dating while their divorce is pending. The short answer is that dating while your divorce is pending "muddies the waters".
As I have discussed, conduct issues can be a factor in determining the equitable division of marital property and, in some cases, alimony. If your new relationship began after you and your spouse separated, it is considered "post separation conduct." Sometimes, however, it's difficult to prove when a relationship began, especially when it is with someone you knew prior to the separation. You and your co-worker may have only started dating a month ago, but your phone records may suggest that the relationship started much earlier. Also, your spending on your significant other may be used against you. A paper trail of fancy dinners, luxury hotel stays and extravagant gifts is not your friend.
Post separation conduct can also impact custody cases. Behavior while a custody case is pending is often looked at under a microscope. Discretion must be used when introducing your new love interest to your children. In many cases, this is best left to when the divorce is final. Also, make sure you have your priorities in order. If you are asking the court for additional time with your children, relinquishing time with your children to spend it with your significant other is not a good idea.
If you are dating someone, it is important to be honest with your lawyer and the court about it even if you fear they will not approve. Lying about a relationship can be considered worse than the relationship itself.
Every circumstance is different. If you want to start dating, get legal advice first so you understand how the legal implications apply to your particular case.
As I have discussed, conduct issues can be a factor in determining the equitable division of marital property and, in some cases, alimony. If your new relationship began after you and your spouse separated, it is considered "post separation conduct." Sometimes, however, it's difficult to prove when a relationship began, especially when it is with someone you knew prior to the separation. You and your co-worker may have only started dating a month ago, but your phone records may suggest that the relationship started much earlier. Also, your spending on your significant other may be used against you. A paper trail of fancy dinners, luxury hotel stays and extravagant gifts is not your friend.
Post separation conduct can also impact custody cases. Behavior while a custody case is pending is often looked at under a microscope. Discretion must be used when introducing your new love interest to your children. In many cases, this is best left to when the divorce is final. Also, make sure you have your priorities in order. If you are asking the court for additional time with your children, relinquishing time with your children to spend it with your significant other is not a good idea.
If you are dating someone, it is important to be honest with your lawyer and the court about it even if you fear they will not approve. Lying about a relationship can be considered worse than the relationship itself.
Every circumstance is different. If you want to start dating, get legal advice first so you understand how the legal implications apply to your particular case.
Friday, November 19, 2010
Judges: Outcomes Suffer with Self Representation
According to an article in the Atlanta Journal Constitution, a recent American Bar Association ("ABA") survey found that outcomes suffer when litigants represent themselves in court.
With the poor economy, an increasing number of litigants choose to represent themselves in order to save money. Sometimes this can be penny-wise but pound foolish. Indeed, 62 percent of the 1,176 judges who participated in the ABA survey state that judicial outcomes for parties without attorneys are worse.
Experienced lawyers know the rules of procedure for bringing evidence before the court. They know about deadlines and notification requirements and how failing to follow certain rules and procedures can prevent even compelling evidence and arguments from ever being considered by a judge. All litigants are bound by these rules regardless of whether they are represented by counsel.
In somewhat amicable divorce cases, couples often agree not to use a lawyer and to draft the paperwork using forms they find on the internet. I have no doubt that some of these people never have an issue. However, for those that have issues, the issues can be significant and, often, unfixable.
It’s a familiar scenario. I meet with someone and tell him or her how much it will cost for me to draft his or her divorce paperwork if the parties can reach an amicable settlement. A few months (or years) later, I get the call: “Guess what, we decided to do the divorce on our own and now I have a big problem and need your help.” Sometimes, I can fix the problem, but it costs them more than it would have cost them had I drafted the original paperwork. Other times, there’s no easy fix because the court has no authority to modify the poor or unfair language in an agreement. Don’t let this be you!
With the poor economy, an increasing number of litigants choose to represent themselves in order to save money. Sometimes this can be penny-wise but pound foolish. Indeed, 62 percent of the 1,176 judges who participated in the ABA survey state that judicial outcomes for parties without attorneys are worse.
Experienced lawyers know the rules of procedure for bringing evidence before the court. They know about deadlines and notification requirements and how failing to follow certain rules and procedures can prevent even compelling evidence and arguments from ever being considered by a judge. All litigants are bound by these rules regardless of whether they are represented by counsel.
In somewhat amicable divorce cases, couples often agree not to use a lawyer and to draft the paperwork using forms they find on the internet. I have no doubt that some of these people never have an issue. However, for those that have issues, the issues can be significant and, often, unfixable.
It’s a familiar scenario. I meet with someone and tell him or her how much it will cost for me to draft his or her divorce paperwork if the parties can reach an amicable settlement. A few months (or years) later, I get the call: “Guess what, we decided to do the divorce on our own and now I have a big problem and need your help.” Sometimes, I can fix the problem, but it costs them more than it would have cost them had I drafted the original paperwork. Other times, there’s no easy fix because the court has no authority to modify the poor or unfair language in an agreement. Don’t let this be you!
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