Negotiating Your Settlement

Introduction:

The concept of interest-based negotiations isn’t new to ADR professionals, but it’s probably a foreign idea to your clients.  Helping clients understand the difference between positions and interests will help everyone involved in the session get to a workable settlement much more quickly. That’s the first part of Chapter 10 of Making Divorce Work.  The second part of Chapter 10 is designed to help clients learn  to talk productively during their private conversations.  Feel free to share this with them:

Talking with Your Spouse About a Settlement

Even if you’re working with a professional to resolve your case, as much as you may hope that your lawyer or mediator will do all of this work for you, you and your spouse are probably going to have lots of discussions outside of court or mediation sessions— before, during, and after your divorce—and keeping the idea of positions vs. interests in mind will help keep your discussions productive.

It’s not as hard as you think to focus on interests and not just positions. What may be hard, however, is listening to your spouse when he is saying something you don’t want to hear. But you’re going to commit to this process and you’re going to hear your spouse out—even if you don’t get the same in return.

Nobody will ever change his or her mind or position without first feeling that he or she has been heard. So that is where you are going to start. You are going to reframe and rephrase the position. Start with “let me make sure I understand” and then restate what your spouse has said. ….. Next, you’ll ask for an explanation: “Help me to understand why that is important to you” ………. Say it in a neutral, curious tone. This is about finding out why your spouse wants what she wants and then figuring out a way to give it to her that also feels good to you. And if it’s something that you can’t agree to, or figure out how to agree to, at least your spouse knows you listened and considered her wishes. That will go a long way in helping your spouse to compromise, too, when it’s about something that’s important to you.

Be very clear that you’re willing to consider your spouse’s position.. ………

If you’re not sure you’ll agree to the request, you can say, “I am not sure I’ll be able to agree to that exact request, but would you be willing to consider a different way to accomplish that goal?” For example, “I’d love to be able to say that I’d waive spousal support. I know how much it irks you to have to pay me. I’d be willing to consider a waiver or shorter time period if we can figure out a way to help me be self-supporting within twelve months. Would you be willing to consider something like that?” …………..

Sweat the Small Stuff

Start with the small stuff and work your way up. Don’t try to tackle the biggest and hardest problem first. Save that for last. Start with easy things, like your checking accounts and frequent flier miles. Don’t start with the house, Christmas parenting time, or valuing your small business. When you start with the big issues, you’ll rarely reach an agreement. If you can’t solve the small stuff, you won’t be able to solve the big stuff. Keep your initial goals small and easy to accomplish.

Working your way up also helps to build trust and confidence in the process. And it lets you see the progress you’ve made. Even if you can’t resolve everything, you can at least narrow down what you still need to tackle. Once you and your spouse see that it’s working, your agreement will start to gain momentum. You’ll be excited by the prospect that you might actually be able to settle this after all. …………….

If Things Aren’t Going as Hoped

If the negotiations aren’t going as smoothly as you’d hoped, ask yourself:

• Are my requests and expectations reasonable given our situation and the law?
• If I were my spouse, would I accept the proposals I’m making?
• Are my offers fair? Would other people perceive them as fair?
• Are my proposals based on facts that I can prove, like the size of our bank account? If so, does my spouse have the information to know that what I’m asking for is accurate?
• Is timing an issue? Am I pushing too hard, too fast, or going more quickly than my spouse can tolerate?
• Is the settlement I’m requesting in line with other court decisions or settlements?
• Do I have the power to force this issue? How likely am I to win if I do force it?
• What are the benefits to me of pursuing my present course? Are there any risks?

Like so many valuable life lessons, these skills are simple, but not easy.  But the effort you put forth in learning how to interact with others this way—particularly your co-parent or former spouse—will help you move through difficult relationships in a more peaceful way.

Website: www.peace-talks.com

Articles by: http://www.mediate.com//articles/MercerD13.cfm

Mediation and Collaborative Law for Premarital Agreements and Prenuptial Agreements

It’s engagement season!  And while everyone’s busy admiring the ring and talking about wedding colors, it’s tempting to gloss over more serious issues, like your financial future and money styles.

I’ve been working in the divorce field for over 20 years and I’ve also been divorced myself. Now I’m happily remarried.  So the suggestions and advice in this article are from both professional and personal perspectives.

As I sit in the mediation room and I listen to a couple describe how long they’ve been struggling with the problems that brought them to the decision to divorce, I often feel that if they’d had heart-to-heart discussion about tough topics like money styles, using credit, whether to return to work after having children and household responsibilities earlier in their relationship that we wouldn’t be mediating their divorce. They’d still be married.

As a newly engaged couple, you can choose to have these discussions now, before you tie the knot.  It’s like marriage insurance because you’ve had the tough discussions before you’re confronted with a crisis you’re likely already on the same page as you start to deal with the problem that’s arisen.

 

And you’ll be confronted with a crisis sooner or later.  We create some crises ourselves, by over-spending, paying bills late, or mouthing off at work and the boss overhears.  Other crises happen to us, like the 2008 recession or getting your identity stolen.  Other crises arise so slowly over time that we don’t even realize they’re happening, like inadvertently pushing all the income responsibility onto one spouse or failing to have enough income tax withheld from your paycheck.  But one thing for sure:  you’ll confront plenty of crises during your marriage.

So whether or not you actually write up a premarital agreement or prenup, it’s important to have the discussions:

•             What happens if one of us gets laid off?

•             If we have children, who will take off work and for how long?

•             And how will we handle the discussion if our feelings change about returning to work?

•             Do we anticipate having to support our aging parents?  If so, what will we do?

•             Will we live on a budget? Or will we each have our own accounts and contribute a set amount of money to joint finances each month?

•             What if one of us comes up short money-wise one month? 12 months?

These are just a few of the topics you’ll want to discuss.

These discussions and decisions can be challenging. That’s why we suggest using mediation or Collaborative Law to facilitate the process. In mediation with Peace Talks, you’ll work with both an attorney or financial specialist and a therapist, so that if the discussion is hard you’ll have help and support.  We make sure that you talk about everything you need to talk about before you get married.

We’ve mediated premarital agreements like this for years, and we’ve learned some interesting things and we’ve helped couples understand each other better. 

For example, with one couple we worked with the husband had become a millionaire overnight. But he’d been raised in a poor family and he had a really strong work ethic.  He had a sense that the millions could disappear as quickly as they’d appeared, and he knew that he’d need to reinvest a lot of his money into updating and upgrading his inventions because, as you know, the world moves very fast and people copy good ideas quickly.  He couldn’t assume that his one invention would continue to be the only choice for people who needed it.

On the surface, his financial picture was that of a wealthy man with solid investments.  It wasn’t until we discussed how quickly things could change for his business and the fact that he wanted to continue to invent things that it became clear that his savings would likely be used as business reinvestments, not fancy trips and expensive cars. 

He talked frankly about sharing a room with 3 siblings growing up. He talked about using his newly acquired wealth to support his former stepson, his mother, and a cousin. He had no legal obligation to support these people, of course, but he felt very strongly about helping out since he could.

His fiancée knew part of this story, but not all of it. Tears came to his eyes as he talked about his former stepson, and sharing that room with 3 siblings. Once she heard and understood where her husband-to-be was coming from, what his values and priorities were, she agreed that they were important to her, too, and that she wouldn’t stand in the way of any of these goals.

That’s the happy ending.

But imagine if they hadn’t had that discussion in advance. They had a baby on the way, and what if his fiancée later resented how much he spent helping others rather than buying a new house for their new family?  What if he reinvested his savings into a new business venture which failed?  For both spouses there could be blame, shame and guilt attached to these events.  But because this couple had thoroughly discussed these possibilities in advance and agreed that they intended to live modestly and that when the baby came that mom would give up her high paying job to stay home without an expectation that she return to work, this really reduces the likelihood of misunderstandings.

And, perhaps more importantly, because they knew how to have these kinds of conversations if a new situation emerged that neither had anticipated they’d already have the skills to have similar difficult conversations because they’d done it before.   That’s a really important part of the premarital agreement discussion—just the practice of how to talk to each other when things aren’t as you’d hoped or expected.

Even in my own life it’s been helpful to remember these tips and to remember to have the discussions early, before the problem becomes worse.  I remember one time I was fretting about needing to take $20,000 out of the home equity account to cover a number of bills.  I was really upset and I was having trouble sleeping.  But instead of holding onto this information even longer, I shared it with my husband.  I showed him the checkbook and how we’d spent our money, and why this $20,000 was necessary. Once he saw the balance sheet, he understood, and we agreed to withdraw the money.  I felt better immediately. By withholding this information from my spouse just because I anticipated that the discussion would be unpleasant, I was actually making the problem worse.

Mediation and Collaborative law help you to have these discussions in a safe and neutral setting. Your mediator or collaborative professional will help you identify all the options for each topic and go over the different choices with you so that you’re able to agree upon the best choice. And if you don’t agree, it’s the mediator’s job to help you understand why not and if there’s a possibility to bridge the gap.

We’d much rather see you before you get married than later if things go wrong. Mediation and Collaborative Law can help you draft an agreement which makes sense to both of you and also teach you the skills to have these sorts of discussions on your own in the future. Because the only constant is change.

Collaborative Divorce The Best Way To Divorce In California

You have decided your marriage is not working out. You want to divorce, but your friends have told you horror stories about dragging your divorce through the court system. You remember reading an article about Gwyneth Paltrow’s “conscious uncoupling” and her decision to use mediation instead of litigation. Where do you turn?? To collaborative divorce mediation at Peace Talks!

At Peace Talks, we do collaborative divorce: a non-adversarial approach to dissolution. We avoid the litigation over property, parental rights, and pride that destroy families. Peace Talks’ collaborative divorce is the preferable way to dissolve your marriage because it is 90% less expensive than litigation. It is confidential and private. Your discussions, disagreements and decisions are never public knowledge. Peace Talks makes divorce mediation a sane, sensible, and affordable alternative.

Practically speaking, collaborative divorce mediation involves a series of meetings between your partner and yourself, tailored to help you reach agreements in as amicable a manner as possible. A team of interdisciplinary specialists, an attorney, a therapist, a financial expert, and potentially other experts provide you with information to help you make excellent decisions that are in the best interests of your children and your family.

Collaborative divorce also demands another important factor: complete honest and full disclosure by both sides. A collaborative mediated divorce cannot be successful if facts are hidden from the other person. Thus, one of the first steps at Peace Talks is to voluntarily exchange all financial information. This enables our financial specialist to analyze your economic situation and present you and your partner with an accurate analysis of your financial situation. This information becomes the starting point for discussing the division of your household. An advantage of collaborative divorce is that you do not have to comply with mandated court rules. The two of you can come up with a solution that respects your shared goals.

During divorce, your life can seem chaotic, overwhelming and spinning out of control. At Peace Talks, together we develop a clear and systematic plan to keep the level of emotional strain to a minimum. While the process can be shorter than litigation, approximately 4 to 6 months, we work at your pace.

An additional benefit is that meetings at the Peace Talks’ offices are arranged to fit your time schedule, not an outside party like the civil court’s.

Another significant asset is that our mediators give you an opportunity to develop communication, self-management and negotiation skills that will help you during the divorce mediation process and beyond. The skills you achieve at Peace Talks allow you to be involved in the decision making process each step of the way. It also enables you to create a mediated settlement that attains the goals you mutually designed at your first meeting.

In our opinion, the most important reason to choose Peace Talks is that the well being of your children is protected. At Peace Talks, our team of mediation specialists ensures your children’s needs are paramount. With your input, we work to create a parenting plan that is in the best interests of your children. Not only do we consider your present situation, we discuss the developmental stages of your children and devise a plan that looks to the future while remaining flexible.

As you can see, at Peace Talks, the cooperative nature of collaborative divorce mediation can reduce the emotional stress caused by a break-up of the family and lead to a settlement that works for you and everyone involved. We believe by selecting this process you are ensuring the success of your future co- parenting and providing a safe family environment for your children to flourish.

Give Peace Talk a call today and schedule your complimentary consultation. See how collaborative divorce mediation can bring peace to your world. Call us at (310) 301-2100.

The Best Way to Start Your Divorce – A Divorce Mission Statement

Have you thought about how you want your divorce to go?  What’s your ideal resolution?  Do you see a clear winner or loser?

Divorce is one of those areas where the questions you have now will almost always lead to even more questions.  One thing you can do to exercise control though is write a mission statement.  A divorce mission statement.

You read it right.  In divorce mediation, a mission statement for your divorce is your compass guiding you away from controversy and toward peace.

The first step is to decide what you want at the end of this process and to spell it out.  You’ll need to set goals at the outset so you’ll be able to stay on course when things aren’t going your way.  There will be temptation to behave badly during your divorce.  Your mission statement will keep you focused.

There is a huge distinction between what’s important and what’s urgent.  We’re often drawn toward the next most urgent thing, but often it’s really not important, at least not to the goals you’ve set for yourself.  There will be many tempting distractions during your divorce.  Your mission statement will keep you on track.

As you move toward your settlement, life can get chaotic.  You could easily end up spending your days with activities that seem to require your immediate attention but which have nothing to do with your short or long term goals.  When you take the time to think about and craft a mission statement that suits you, it reduces stress and suffering.  It points you in the direction of living in a way that you know will make you proud of yourself.

Living your mission statement doesn’t necessarily mean a complete overhaul of your personality.  Don’t get bogged down in thinking you could’ve saved your marriage had you done something like this earlier.  You’re doing it now, and that’s what counts.  The past is the past and it doesn’t matter now how you got here.  If how you got here is of real concern to you, consider addressing the issue with a professional counselor, your doctor, or a support group.  This is about moving forward and making sure your thoughts and behavior are in line with what you deeply care about.  This will make it much easier and much less scary to let go of things which pull you off track.   

You may want to re-write this mission statement periodically and reassess your goals throughout the process.  That’s not only okay, it’s encouraged.  Life is a work in progress.  You will change a lot during this process, and embracing the change in a positive way will help insure that you emerge happy, healthy, and whole.       

Your divorce mission statement will serve as a reminder of who you want to be at the end of your divorce. Keep it handy. You will need these reminders when things get tough.  The hard work of staying in touch with your mission, and realigning your behaviors to fit with your mission, will be worth it.

Most everyone we work with in our divorce mediation practice finds  that creating a divorce mission statement had a significant impact on the course of their divorce.  It’s a big first step, so when you’re done, take the time to congratulate and reward yourself. You actually wrote down your core values and are headed toward them. Rally yourself to forge ahead. You can do this.

Divorced or Divorcing – How to have Happy Jolly Holidays!!

At Peace Talks, we know that the divorce process is stressful and creates emotional turmoil. And we also know that experiencing the winter holidays for the first time as divorced or divorcing can spike emotions to a whole other level. Especially if you have children, how can you keep the holiday spirit alive in the midst of this emotional upheaval?

During divorce mediation at Peace Talks, you have the advantage of receiving advice and coping skills to handle sensitively charged holiday situations and decisions. If you have not made the decision to use divorce mediation, or you are recently divorced, we have some recommendations for you to get through the holidays with your sanity and feelings intact.

Nothing will ruin the holidays more for you and your children, than fighting over holiday plans with your ex-spouse. As part of divorce mediation at Peace Talks, we devote an entire mediation session to creating your parenting plan. This plan includes a holiday schedule for your children and your family celebrations. By having a plan in advance, you can greatly reduce potential problems.

If you do not have a plan yet, create a holiday schedule NOW. It gives you and your children an opportunity to work together with a calendar and decide how the holidays will be shared. It is also possible to devise a plan that alternates every other year, so that one year your children are with you and your family, for example, on Thanksgiving and the next year, they are with your ex. Also you may want to maintain traditions that your children have enjoyed and associated with particular holidays, while at the same time being open and flexible to starting traditions of your own.

Basically, it all boils down to the fact that the more planning and arranging of these details that can be done before the holidays, the more time, energy, and desire everyone has for the celebrations. Planning holiday schedules effectively reduces family conflict and tension because everyone involved knows what to expect ahead of time.

Along with having a detailed holiday plan, Peace Talks wants to give you some helpful tips to help make your holidays brighter. If your well laid plans did not go off as scheduled, keep the situation in perspective. Especially if you have young children, flexibility is key to your celebration. Crankiness, illness, or high activity can all interfere with your ability to keep your plans on track. It’s best to try to go with the flow.

Another good tip is to keep your sense of humor. In high stress situations, it’s easy to get your buttons pushed by your kids, your relatives or even your ex. Try to make a joke. Laughter has a calming effect. It’s impossible to be yelling while you are laughing and laughter is contagious. Pass the joy of the season around.

It can’t be said enough that a key to a successful holiday celebrations is good communication between everyone. It’s a smart idea to sit down with your children and talk with them. Let them know you that going back and forth for the holidays between two families is tough, and it creates a lot of stress for everyone. Work as a team to anticipate the bumps that will occur and the possible solutions to resolve them.

One other important thing to keep in mind is to not make the holidays negative by badmouthing your ex. Meditate, self-sooth, talk with a friend, but keep the negative sentiments away from your children. It’s a fact that you are no longer the one family you use to be, but this is an opportunity to create new traditions, perhaps healthier ones for yourself and your children. You can make the season bright with good planning, open communications and a sense of humor –bring on the fun and good times. Happy Holidays from Peace Talks divorce mediation services!! If you would like to learn more about divorce mediation give us a call as (310) 301-2100.

Getting A Trust For The Sake of the Kids

If You Have Children, You Should Get a Trust!

For most of us, our children are our most precious “possessions”. At Peace Talks Mediation, we feel the exact same way and we make their well being the focus of our divorce mediation. However, while we may believe that we place our children’s interests as our highest priority, many of us have not taken the necessary steps to protect and provide for them in the event that we come to an untimely demise. Often we procrastinate believing that estate planning is only for the rich or the elderly. Or perhaps, we wishfully think that our extended family will jump in and take care of our children in case we die. At Peace Talks mediation, we encourage you to do the responsible thing: Get a Trust!

Financial planning is an essential part of protecting your children and creating a family trust is an excellent vehicle to accomplish this.A trust, which is a formal legal document, achieves many important things: It manages your money, and distributes it for you upon your death. It puts conditions on how and when your assets are distributed after you die; it can also reduce your estate and gift taxes. It enables your assets to be distributed efficiently without the cost, delay, and publicity of the probate court. It may also insulate your assets from creditors and lawsuits. Additionally, you are able to name a successor trustee who will manage your trust after you die, and is also empowered to do so if you become disabled. At Peace Talks’ divorce mediation, our financial experts can explain this process in detail to you.

This is the key fact: the truth is that all parents of young children, regardless of their net worth, need comprehensive estate planning. The reason is that if you don’t have an estate plan, you forfeit the opportunity to make many important decisions that you are in the best position to make. In Peace Talks’ opinion, this is the primary reason: You are able to choose a guardian for your minor children. If your children lost both you and your spouse in a tragic accident, would you trust a complete stranger to choose a guardian for them? We at Peace Talks mediation don’t believe you would. But that’s exactly what can happen if you don’t take the time to designate a guardian for your minor children. If you die intestate (without a will or trust), without having designated a guardian, you leave that important decision in the hands of a judge who doesn’t know you or your children. Peace Talks believes that would be a big mistake.

Next, you are able to choose the person who will manage the assets that you will leave for you children. With a trust in place, you can have some say in how your children’s money is spent. Setting up a trust for your children allows you to delay when they get control of assets you leave behind, or even stagger the distribution over a number of years. Otherwise, your children could receive their share of assets at 18 years of age, when they might not have the maturity to manage it.

Without a trust, you leave the decision making to a judge who doesn’t know anything about your financial values and will be required to appoint a guardian of your estate to oversee its management. As we urge at Peace Talks divorce mediation, all this can be avoided by proper advance estate planning. Remember these are important issues for your family. Since trusts are flexible, varied and complex with each type having its advantages and disadvantages, you should discuss your desires and goals thoroughly with your estate-planning attorney before setting one up.

Call us at Peace Talks divorce mediation for further information. (310) 301-2100.

What Makes Divorce Expensive?

Let’s just get this out of the way from the start.  There are many ways to get divorced. You can represent yourself – a kind of do it yourself method.  You can choose mediation or a collaborative practice process.  Or finally, you could select litigation.  Obviously (and I hope it’s obvious), litigation is the most expensive way to go.

Numerous factors cause a litigated divorce to be expensive.  Proceeding through the court system usually involves using an attorney who requires a retainer and charges an hourly fee.  There are various court costs such as the filing of a Petition, a Response, and Motions.  If your matter cannot be resolved, then you may choose to have a judge or jury trial, which can exponentially increase your expense. As the case progresses, there may also be a request for a child custody evaluation, in addition to potential adult and/or child therapy sessions.  As discussed below, other expenses may come into play such as an asset evaluation, and the potential use of a variety of specialists including tax, accounting or child experts. 

Another key factor in determining your fees is how your soon-to-be ex-spouse handles your case.  This can escalate your costs, or keep them manageable.  If a scorched-earth tack is taken, your entire community assets may be spent on attorneys’ fees, and leave nothing to divide. Even if the other side’s attitude is not hostile, the attorney may have a disagreeable personality and cause everything to be more difficult to accomplish and therefore, more expensive.  In essence, an attorney can choose a litigation path that exacerbates the fear and heightens conflict in this situation and escalates costs.  Alternatively, an attorney can chose a path, which avoids drama and conflict and make divorce easier, quicker and less expensive.

An additional cost inflator is a divorce that involves complex, unusual, or large amounts of financial assets, which typically require financial experts to value the financial assets and a fair amount of negotiation to reach a settlement over how to divide the assets. Some financial assets are difficult to divide in a divorce due to legal issues with who can hold title to the assets or merely finding ways to divide typically indivisible assets. Not all financial assets are easily sold or make sense to sell at the time of divorce, which can add another wrinkle in the property division. With the sale or transfer of financial assets can come tax implications for one or both parties and therefore including a tax professional is often necessary. (Cha-Ching!)

These issues can hold true not only for passive financial investments, but also for active business interests in which one or both spouses have management and/or ownership interests in a business. The business may not only be a source of assets for the marital estate, but also may be a source of income for one or both spouses. Valuing the assets plus analyzing the revenue stream may require expert valuation. If there are other owners in the business then that can create additional problems in negotiating how to deal with the parties’ ownership in the business as the other owners likely do not want to have the business become subject to the post-divorce involvement of both spouses.

Another cost inflator is fighting over custody issues. When the children become a focus of conflict in the divorce there are a number of expenses that may accrue. One or both parents may ask the court to appoint an attorney ad litem, a guardian ad litem, or an amicus attorney. These third parties provide various roles on behalf of the court or the children to advocate for the interests of the children rather than the parents. They can be helpful, but the parties will be the ones financing the costs of that third party. There may also be expenses involved in home studies, therapists, counselors and other professional services related to the children and their role in the conflict.

However, the ultimate sinkhole for money in a divorce is a Trial.  Between the waiting for courtroom time, witnesses, experts and jurors, and the presentation of the evidence, you have very little control over the cash flow for this endeavor.  Ultimately, the emotional benefit of having your day in court rarely matches the emotional detriment of spending all that time and money.  Many people labor under the impression that by having their day in court, the judge will declare them the better spouse and give them a landslide victory on the property and child issues.  That is generally not what happens.  Judges tend to divide assets 50-50, and do what’s in the best interests of the child using their criteria, not yours.  So ultimately bushels full of money are spent and no one is happier, just financially broke.

There are alternatives to litigation and an expensive divorce: mediation.  There are no dueling lawyers and expensive court battles.  Both parties come together with honesty, transparency and in good faith to reach an agreement, which they can live with and is in the best interests of their children.  In this way, you are saving money, time, stress and energy that could be better spent moving on with your new lives.

At Peace Talks, our goal is to keep your costs at a minimum while at the same time to provide efficient, comprehensive, and emotional support and guidance through this family trauma.  With excellent financial advice, you are able to strategize an agreement, which works best for your family needs and future.  Call Peace Talks, and learn the definition of a “peaceful divorce”, and retain the financial ability to proceed forward with your life.

Peace Talks is a collaborative divorce mediation firm that helps spouses file for a divorce in a sane and sensible manner. Peace Talks provides divorce mediation services in Los Angeles and throughout California. We have family law attorneys, family therapists and financial consultants who can help you file for a divorce in a way that is less expensive than the courts in Los Angeles and California. Visit www.peace-talks.com to learn more about how you can have a peaceful and amicable divorce in Los Angeles.