Running the numbers: Mediation vs the Rest

 

How much cash would you save by using Mediation?

Meet your alternative — Litigation

Your alternative is to use an expensive, in-court process where each spouse becomes a “party” and hires an attorney to help you fight each other.  A judge then issues a decision on various issues, which becomes binding on both of you whether you like it or not.  This is called “litigation”.

Any litigation holds the potential for costs to spiral out of control.  But the worst part may be when you realize just how little you actually get for your money.

By far the most time in a litigation is spent during the “discovery” phase.  That simply means the exchange of factual information between the parties.  Lets take a look at how wasteful and pointless discovery really is:

Discovery is a highly formalized process, where your attorney charges an hourly rate between $300 and $500 per hour to carefully draft various documents, including requests for certain documentation, and a series of questions called “interrogatories.”  This takes time because the wording has to be just right, and they have to do legal research (which you pay for) to find the right citations that root their requests in a basis of law.  Now the other side also has an attorney, and their job is to do their own legal research, and object to the form of the questions asked – to fight over the amount of information they are willing to disclose by raising legal objections to the way the questions were worded, and their underlying legal precedent.  Your lawyer is then in a position to do more research and do more drafting, while the other side does more research and more objecting.  And of course their side wants information from you as well, and the process repeats itself.  For years.  Do you see why litigation is always the most profitable route for your attorney, but the worst option for you?

Bottom line: $73,000.  $350/hr for 4 hours per week, 50 weeks in a year.  Don’t forget to add your $3,000 retainer fee!

Collaborative Law: Your 2nd best option

“Collaborative” doesn’t just mean trying to get along.  To lawyers it means something specific — This method is governed by Chapter 61 Part 3 of the Florida Statutes, “the Collaborative Law Process Act” and requires at minimum, the use of an attorney on either side, and a neutral mental health “facilitator” of your divorce settlement negotiations.  Attorneys in South Florida will cost an average of $350/hr, and a facilitator will cost around $250/hr.  So this method means paying at least 3 professionals, with each of them charging you their regular hourly rate.  Two attorneys and a facilitator could amount to $950/hr or more for the duration of your settlement negotiations.

Additionally, in cases that have some financial complexity, it is often recommended by the collaborative group that you also include a neutral financial professional, or “NFP,” who typically costs around $300/hr.  They will likely charge you to be at every meeting your team holds, even the ones where they don’t say anything or do any calculations.  You can read more about the value of these professionals here.  An entire team of professionals may be useful in a lot of cases, and its always better than litigation, but the price tag can be anywhere from $950/hr to $1250/hr or more.  An average collaborative case takes 4-6 months.

Bottom line: $19,000.  $950/hr for 1 hour per week over 20 weeks.

Mediation: Cheaper, Faster, Smarter

People are tired of wasting money on a process that does more harm than good, and is more expensive than it needs to be.  Mediation is the lean, efficient alternative to settling disputes in court.  Whether you are on the high or the low end of the income range, whether you have many complex assets or none at all, whether you have children or not, mediation will settle your divorce case faster and for less money, and with less stress and conflict than if you went to court.  It just makes sense.  And at Fair and Friendly Mediation, no retainer fee is ever necessary.

How can mediation be so much less expensive?  We respect your time, have no hidden fees, and use a transparent, easy-to-understand cost structure. Mediation uses just one professional — the neutral mediator.  We don’t divide you into teams.  We cut out the lawyers entirely (unless you really want them to be there).  We have no formal discovery process.  When it comes to dividing up the assets or calculating the child support, you get a straight answer when the law is clear, and we work together on creative solutions for everything else.

Of course, you will want to make sure the mediator has the necessary qualifications to be able to do a good job.  Most mediators will charge around $350/hr.  An average mediation will last around 6 hours total over the course of one or two days.  At Fair & Friendly Mediation, we include help with your document preparation.  We make sure you know where to go next.  We also talk to you on the phone for free and are always available for follow up questions both before and after the mediation at no extra charge.  We are with you from start to finish, and the only thing we charge for is time spent actually mediating.  The rest we see as an opportunity to demonstrate our commitment to excellent service.

Bottom line: $2,100.  $350/hr for 6 hours over the course of one or two days.

Visit Fair & Friendly Mediation to learn more!  Or call us at 954-998-3247.

How to Select a Family Mediator — The 5 qualifications they need to have (but usually don’t)

There are 2000+ mediators in Florida who are certified to mediate family disputes including the dissolution of marriage.

At a minimum, every family mediator:

a) possess a bachelor’s degree,
b) attended a course on conflict resolution,
c) completed 40 hours of a certified family mediation training program, and
d) observed 7 mediations conducted by other people.

Thats it.  These requirements can be met within 2 weeks, so its easy to see why quality among mediators varies widely.  How do you choose?  How would you know what to look for?  You might ask around for a friend’s opinion and then hope for the best, but you can do a lot better than that.  To sum it up in one sentence:   the best mediator will be a mediation specialist who possesses a broad skill set that draws from law, psychology, and negotiations. 

The 5 qualifications are:

  1. A law degree from a top law school
  2. Specializes in mediation and does not litigate cases
  3. Is not a retired judge
  4. Has a background in Psychology
  5. Can speak from personal experience

1) A law degree from a top law school

I know a handful of very skilled family mediators who possess a Ph.d in Conflict Resolution.  They are excellent listeners, pragmatic problem-solvers, and their patience is nothing short of awe inspiring.  They are also totally unqualified to write your settlement agreements, and have no ability to discuss with you the legal aspects of your case.
Remember that the culmination of a successful mediation is the drafting of a legal document — your settlement agreement.  Non-lawyers drafting legal documents is a disaster waiting to happen.  Lawyers are trained to use legal terminology precisely and carefully, and in a way that a judge will be able to interpret according to a set of rules we all learn in law school.  This requires a lot more than lay people attempting to use “everyday speak”.  Keep in mind that lawyers are trained to find ambiguity in written documents.  Imprecise drafting could cause ambiguity that keeps you in court arguing for years over what it is you just agreed to.
How much could this error cost you? A typical trial costs $40,000 to $60,000 on average.  If one side is unhappy with the result and decides to appeal, you could easily double that.  You could spend tens of thousands of dollars litigating issues you never saw coming because your non-lawyer mediator lacked the skill set of legal writing, and never thought to warn you about the consequences.
It really is not enough to use an attorney who went to just any law school.  It takes a different form of education to prepare for certain kinds of cases.  Schools outside of the top 20 tend to focus on memorization of laws instead of understanding the range of outcomes that can come from each individual case.  When you have a question about getting your security deposit back or if you’re wondering if the police can really do that, these are the people who would have the answer.  This doesn’t help you in the family law context — the rules here are less clear, and a deeper understanding of how judges make decisions is necessary.
Accordingly, they rely on oversimplifications of law, without any understanding of the nuances, the exceptions, and the probabilities of various outcomes.  Non-attorney mediators are as in the dark about your legal rights and entitlements as you are.  Sometimes that is ok.  Not everyone is interested in what they are legally entitled to, or what a judge would say if their case did go to trial.  Some people (commendably) are so committed to avoiding court that these issues are not relevant to the agreement they want to create.
Often though, people want to know their rights and their likelihood of success in litigation, including all the costs and benefits.  They want to be empowered and informed before accepting any negotiated outcome through mediation.  Without such information, how could they possibly know whether they are reaching a “fair deal” or getting ripped off?

2)  Specializes in mediation and does not litigate cases

 

Lawyers are taught to be zealous advocates for one client at a time.  Their job is to fight and to win at the other’s expense.  If your goal is to keep the peace, why would you hire someone like that?
There is never a moment when a litigation attorney sits between two spouses as a neutral third party.  Their skill set is to use technicalities and legal leverage to apply pressure in favor of one party at the other’s expense.  When litigation attorneys attempt to be mediators too, they have left their areas of expertise.

3)  Is not a retired judge

Judges make the worst mediators. I really hate to say it because every judge I have met is an intelligent, conscientious, and well-meaning public servant.  But their skill set is even less relevant to mediation than that of the litigation attorneys.
Judges tend to believe there is a “right” way to decide the case and a “wrong” way, and they lose the ability to see your case from any other perspective.  The worst thing a mediator can do is to decide one side is in the right, and lose touch with the weaker aspects of their case.  Mediations never settle when one side is convinced they’re sure to win at trial — why would they continue to negotiate if they have a certain victory?  The danger is that any case, no matter how straightforward it may appear to be, can always be viewed from multiple perspectives.  Having a judge decide who is right and wrong leads to mediations that do not settle, and trials with surprising outcomes that can be devastating to you and your family for years to come.
One of the key values of mediation is that it empowers you to craft negotiated agreements that are custom-tailored to you and your family.  Control of your family and your life belongs in no one’s hands but your own.  It is not surprising that people are more likely to actually follow their settlement agreement  — even the provisions they dont like — when they had a hand in creating it themselves.

4)  Has a background in Psychology

Every mediator knows often times “its not the money, its the principle.”  Over the course of the clients’ spousal relationship, many possessions, concepts, and actions become loaded with emotion.
Not cleaning the house for example could be an important concept for someone because psychologically it means to them that they aren’t being appreciated by their spouse.  Sometimes deals cannot get done because one side is incapable of saying yes to an offer without feeling like they’re being manipulated, ripped off, yet again.
People have very different needs when it comes to how they are spoken to and presented with ideas they might not like.  Some clients have mood disorders.  Others don’t, but they act like they do when they are under stress.  Some are stubborn and combative, and have a hard time saying no.  Some lie to your face and hide everything they can.  It takes emotional intelligence to understand the psychological dynamics in play, and how they alter people’s perception of the mediation process.  Its the difference between getting stuck on the “silly things” couples argue over, and discussing whats really going on.
Mediation is the process that helps you by listening and caring about what happens to you, and by working with you to achieve a workable plan for a happy life going forward.  Very few people can resolve all of their divorce issues themselves — it takes help, but the right kind of help.  Mediators with the qualifications I have listed are essential to help you minimize the harm from a potentially very stressful and damaging process.

5)  Can speak from personal experience

 
Whether they were divorced themselves, or the child of divorce, being able to speak from experience is an important qualification of any mediator. It is comforting to know that someone understands what you are going through, relates to it, and cares about helping you reach the best outcome you can possibly achieve.

The effects of a family law case can last a lifetime. The nuances of the agreement you reach could be the difference between a divorce that runs smoothly and one that ends up back in court. When it comes to knowing which details will be important, there is just no substitute for experience.

Conclusion:

By all accounts, divorce can be a time-consuming, expensive and draining experience. Even the best negotiations can be stressful at times and have moments of tension. Make the process as fast, easy, and painless as possible by making good decisions right at the outset. Give your mediation the best chance to succeed by making sure your mediation specialist has the right qualifications for the job.Contact Fair & Friendly Mediation Today!

The NFP & The Quest to Restore Synergy

The Missing Synergy:

          The value of a collaborative team is defined by the synergy it creates when a team of professionals come together as a group and achieve greater results than any of them could individually.  That synergy is lost when team members are improperly utilized in ways that prevent them from using their skill set to offer the most value they can in a given situation.  Specifically, in many cases the Neutral Financial Professional is underutilized in 3 ways: 1) when used sporadically rather than consistently throughout the process, 2) when they are not expected to take an active role in interest-gathering, and 3) when they are insulated from the emotional dynamics of the parties, which deprives them of essential context for their financial conclusions.  Can this synergy be restored?

Collaborative Goals:

          Collaborative teams attempt to resolve potentially complex legal, financial, and logistical issues a couple faces as they negotiate a dissolution settlement.  A Neutral Financial Professional is often utilized as part of this group to provide financial analysis in areas such as business valuations, tax consequences of proposed courses of action, and forensic analysis of a financial record.  While the attorneys and mental health facilitators are expected to add value at every stage of the process, the NFP is sometimes brought onto the team in the middle of the process, or used “as needed” or in a limited capacity for the completion of specifically delineated tasks.  This approach leaves value on the table as the team is prevented from reaching its full potential.

Interests, Not Positions:

          One of the main goals of any collaborative team is to figure out the clients’ “interests,” an abstraction which underlies the specific positions or demands they bring to a negotiation.  For example, demanding a certain amount of money would be a position, while the desire to feel financially secure may be an underlying interest that drives the demand psychologically.  Understanding interests empowers the collaborative team to generate creative offers and counteroffers that help each spouse obtain the things they are truly interested in obtaining.  This is often challenging as clients may be in touch with desiring certain things or outcomes without being in touch with why they want them.  Interests are uncovered by astute professionals through discussions of various topics.  Many of a person’s interests may be uncovered through discussions about money.  Accordingly, the NFP has an essential role in discovering interests.  How?

The NFP Role:

          NFP’s are uniquely in position to offer the central goals of the collaborative process – empowerment of the parties and confidence in their negotiated outcome going forward.  A financial professional can use forensic accounting to analyze the mindset behind the financial decisions being made, they can assess the economic viability of proposed agreements, and they ultimately can propose options and financial solutions that no one else would have thought to suggest.  Doing so will allow parties to feel like the collaborative process worked – that they will be on sound financial footing going forward, and that they reached an agreement that will work for them.  But the NFP is more than an a la carte option who can be brought into financially complex divorce matters in the middle of a negotiation, towards the end after most issues have been settled, or in and out as financial questions arise.  They are not mere calculators who get called in to perform some calculations and then get put back in a pocket.  The information the NFP gathers can become part of a broader calculation.

The Synergy is Restored:

          The team’s synergy is restored when the financial professional is empowered to use his or her financial expertise in the context of the dissolution as a whole.  Being present in the process from the beginning can help the NFP calibrate their subsequent financial analysis.  By observing even non-financial discussions, the NFP will be in a better position to generate insight into client interests than if they were analyzing finances in a vacuum.  For example, the financial conclusion of “viability” of a proposed agreement will include subjective as well as objective components.  Not only do the numbers have to add up, the agreement has to account for the interests which cause money-related issues to become emotionally loaded.  Interests such as desire for retribution, feelings of entitlement, or fear of managing one’s own finances are often revealed over the course of the team meetings.  Analysis of financial documents can contribute significant insights into the mental and emotional states and subsequent needs of both parties involved in the negotiation, but this insight must be understood within the broader context of the parties’ relationship.  To fully understand and use that context requires the NFP to be present during all stages of the dissolution process.

Conclusion:

          The NFP ought to be involved from the beginning of the process, included in every team meeting, preparatory discussion, and exploratory debriefing.  Expectations of involvement must also be developed, as NFP’s must be aware of the value they can potentially contribute to the team if properly utilized beyond the traditional role of crunching numbers.  The NFP must be given the opportunity to understand the emotional dynamics of the parties, as well as the interests that underlie their financial positions, in order to integrate context into their financial conclusions.  Such an expansive view of the role of the NFP will ensure that clients receive full value for the cost of assembling a team of professionals to resolve their marital conflicts.

Fair & Friendly Mediation started with a simple question

What is it that divorcing people need, and why are they not getting it? 

1. People need a way to get divorced without it turning “ugly”.
By now, everyone has either heard of or lived through a divorce that was stressful, expensive, and created long lasting resentment.  Even the divorce lawyers have told me that nothing makes them feel worse than winning a case. When cases are not settled through mediation, they end up in trials that are long, expensive and frustrating, and pit the spouses against each other as if they’re mortal enemies. Maybe its time to rethink who we hire and why.

2. Lawyers always have a financial interest in keeping you in court.
Litigation is always the most profitable option for the attorneys involved.  Yet many divorce lawyers in Florida are abandoning their litigation practices and moving towards a service that uses lawyers sparingly in limited roles, or doesn’t use them at all!  Did they suddenly gain a conscience?  Maybe a few of them.  Did they decide their hourly rates were too high?  That’s unlikely.  People who are getting a divorce are demanding a process that keeps costs as low as possible and minimizes the harm to everyone involved.  Most people do not want to get stuck fighting their spouse for years on end, or for their children to bear the scars of their parent’s battles.

3. Mediation is the low-cost alternative that gets better results than litigation.
Mediation is the lean, efficient competitor to litigation, and its winning over clients and practitioners alike. In the future, all divorces will be referred to mediation.  Mediators will be licensed attorneys who are experts at drafting settlement agreements in a way that keeps the clients out of court for the long run.  They will be a unique subset of attorneys who also have training in psychology and appreciate the relevance and usefulness of psychological concepts. They will embrace negotiation strategies as a method to get each spouse as much of the things that are important to them as possible.

My vision for Fair & Friendly Mediation is to combine extensive academic credentials and real life experience with a passion for helping people specifically through this complex legal and emotional event.

We will not waste your time or money – settlements are reached in a matter of days, rather than months or years.  Spouses can even utilize their own attorneys to help them navigate the mediation, but their role is nothing like what you would see in court.  We are the place to get individualized attention to the details of your case, and an agreement on your own terms, that is customized to what you want to accomplish.