Author: Donita King

Equitable Distribution Divorce Mediation

Dividing Property During Divorce: 5 Tips for an efficient Equitable Distribution Mediation

Equitable Distribution Divorce Mediation

Finding common ground can be problematic during a divorce, but working with a qualified divorce mediator can help smooth out the Equitable Distribution process. One of the main concerns that a divorcing couple has during mediation is Equitable Distribution (ED), or the division of property obtained during the marriage. Learn more about how to efficiently divide property during your divorce with these five tips:

1. Do Your Homework

The mediator should provide you with a list of needed information and documentation for the upcoming session(s). Make sure to come prepared for the mediation session with the right paperwork to help speed up the process. Clients who do their homework spend less time in a session, and therefore less money in connection with the mediation. Doing your homework before a session helps make the Equitable Distribution process efficient and can cut down on the divorce process’s length.

2. Discuss in Advance

Many divorcing couples may struggle with communication, but it is essential to be open to discussion during the mediation process. Before your session, try to discuss how to divide property obtained during the marriage as much as you can with your spouse. This will cut down on time spent with the mediator and make your sessions focused on issues that you can’t agree upon.

3. Determine Your Priorities

Come to mediation sessions with an idea of what you want to keep from the marriage. Identifying your priorities will not only make you better prepared for sessions, but it also helps you separate what issues you can be more flexible on with your spouse. It is important to remember that couples should give-and-take during the divorce mediation process.

4. Schedule Sessions Well

If your workweek is busy, scheduling a Friday afternoon mediation session isn’t the greatest idea. Schedule sessions when you can be both mentally and physically sharp. It is also important to keep in mind that mediation sessions usually last between 2-3 hours. Scheduling one in between other appointments could create stress if the session goes longer than you expected.

5. Know Your Legal Rights

It is helpful to have a general idea of your legal rights before you begin divorce mediation. Consider doing the research from a reliable and objective source or consulting with a lawyer. Do not rely on advice from well-meaning friends and family members who aren’t law specialists. Your situation and circumstances are unique, and what has been true for others may not be applicable in your case.

It is possible to resolve a marriage through divorce mediation amicably. When desiring an efficient Equitable Distribution process, remember these tips to make the process a bit easier.

Plenty of couples have used divorce mediators, like Donita King, who can help couples separate without the need for litigation. Contact Donita King Law Offices today for more information about how divorce mediation can work in your case.

Divorce Mediator Questions

Top Questions to Ask a Qualified Divorce Mediator in Richmond, VA

Divorce Mediator Questions

In Richmond, VA, choosing the right kind of divorce mediator is essential when you hope to separate amicably from your spouse. There are plenty of mediators and lawyers who work with divorcing couples. However, not all of these professionals are the same. While some will state that they have the experience, it is important to interview and ask the divorce mediator about their work in the field. Here are some of the top questions to ask a qualified divorce mediator:

1. Are you a certified mediator in the state of Virginia?

Quality mediators will be able to answer this question and show you their credentials. Certification in Virginia involves training in the area along with a mentorship where they learned how to mediate divorce cases. An experienced family lawyer who is also a certified mediator has the added skill, expertise, and experience in Family law and the court system as well. Choosing a Virginia certified divorce mediator in Richmond ensures that the person is qualified and specially trained in mediation.

2. As a divorce mediator in Richmond, VA, how many family cases have you handled like mine?

Experience is vital when walking through a divorce. Some mediators have mediation skills in connection with other cases, but may not be as familiar with your issues. This unfamiliarity with your kind of case can limit the mediator’s ability to help you brainstorm and avoid or overcome an impasse. Hiring a divorce mediator with experience is important to a successful mediation.

3. Do I have to have a lawyer?

No, divorcing couples are not required to have a lawyer during divorce mediation. However, some complex cases would benefit from having a lawyer present for each party. Lawyers can help answer legal questions during the mediation and speak for you if needed.

If your divorce mediator is also a family lawyer, they can not act on either party’s behalf. However, they can give insight into different laws and how the court has ruled in other cases.

4. Do you give legal advice?

Divorce mediators cannot give legal advice, even if the mediator is also a lawyer. Lawyer Mediators can give the parties legal information that may help clarify issues and assist the parties in reaching an agreement. Mediators should help both parties communicate and ask questions to help each side understand the other.

5. Can you file for us?

Divorce mediators cannot file divorce paperwork to the court. As a divorce mediator who is also a family lawyer, Donita King can help couples by preparing agreements that will more likely be acceptable to the Courts when filed by the parties or their attorneys.

6. What are your costs?

As with most professional services, divorce mediators are paid on an hourly basis. While every mediation case is different, divorce mediation on average takes about two sessions, with each session lasting about two hours. Then there is the same hourly cost for drafting the Agreement, which will be a comprehensive document containing the terms of the divorce decree when filed.  For more information about our mediation costs, please contact our office today.

7. How does the mediation process work?

The first step to divorce mediation is to speak with your spouse. If they are willing to sit down and work on a mutual agreement, divorce mediation is a good choice. Then, you can schedule a consultation with Donita to speak about your mediation needs in order to move forward. Once it has been determined that mediation is a good fit, you will be informed of what documentation and information you need to bring to the table for the mediation session. When you have the information ready, you will then schedule a mediation session with Donita that is convenient for both you and your spouse. Both in-office and online mediations are now available.

8. What kind of timeline can I expect?

The process of divorce does take longer than some may think. For divorce mediations, it all depends on the availability of sessions as well as the time it takes to come to a mutual agreement. Most mediation sessions are scheduled according to the parties’ availability, proposed timeline, and budget. Again, your case could only require one or two sessions, while others may require more.

9. What if my spouse does not agree?

Divorce mediations rely solely on both parties coming to a mutual agreement.  A good mediator will assist the parties to overcome the impasse, but if that doesn’t work, the mediation must cease and the parties will more likely have to move on to litigation.

10. Can you be a witness if something goes wrong?

Mediation is confidential. The court cannot require a mediator to appear as a witness and a mediator’s notes are not available to the parties or the court. A mediator is only required to report instances of child abuse or neglect. There are other exceptions to confidentiality in Virginia, but the only one mandated by the court is child abuse and neglect.

Work With An Experienced Divorce Mediator In Richmond, VA

For more information about Donita King’s services as both a divorce mediator and family lawyer, please contact us today.

A divorcing couple meets with a mediator

How to Resolve Your Divorce Quickly Through Mediation in Richmond, VA

A couple meets with a mediator to discuss their divorce in Richmond, VA

Very few clients want to battle out their divorce over a span of months or years. When a couple decides to divorce, it usually is something that has been on the horizon for a long time already. 

Before the recent COVID-19 pandemic, battling a divorce out in court took a lot of time and money. With the backlog of cases that many courts are seeing, it can take even longer to get your divorce case heard in court. In Richmond, VA, divorce mediation is a great way to speed along the process and requires little time in court. Learn more about how to resolve your divorce quickly through mediation with these tips:

It’s All About Give and Take

Divorce mediation is most successful when it involves those couples who come to the table wanting to reach an agreement. This doesn’t mean that feelings are not involved, but instead includes couples who wish to reach a middle ground despite the emotions. Divorce mediation offices in Richmond, VA often serve couples who are willing to be flexible and aren’t afraid to give and take when it comes to finding mutual solutions.

Reach an Agreement Outside of Court

One of the best parts of divorce mediation is that clients can agree in a relaxed atmosphere instead of in a courtroom. Spending as little time in court helps cut down on overall expenses and creates a smoother process. Couples have the freedom to speak up and reach an agreement together rather than arguing through their attorneys back and forth in a courtroom. Once a mutual agreement has been made with a written agreement, the parties or an attorney can file an uncontested divorce without the need for a court appearance.

Use an Experienced Mediator

Couples working with a certified mediator, who also practices family law, often see a quicker solution when reaching an agreement. These experienced mediators know the law and can point out areas of the agreement that may have trouble getting approved by the court. They have seen plenty of other cases and understand the laws involving divorce. Using an experienced mediator helps eliminate mistakes and questions that take up time as well.

Choose Online Mediations to Stay Safe

In the current global pandemic, many services have turned to online sources to help keep everyone safe. Online mediations are a great way to work out a problem for couples going through a divorce. You can be at your home while your spouse is in another location and still reach a mutual agreement. 

Online mediations have significantly risen in divorce cases as couples realize the significant backlog of court cases and want to reach an agreement without having to wait months to be heard in court. Choosing online mediation also helps cut down on travel time and can be easier to fit into everyone’s busy schedule. 

Going through a divorce is often not what anyone had planned on during a global pandemic. However, there are ways to resolve your divorce quickly through the use of mediation. The experienced mediator team at Donita King Law Offices can help you work through your case either in person or online. Choosing to reach a mutual agreement through mediation is an excellent way to save time when needing divorce mediation in Richmond, VA.

Contact Donita King Law Offices today for more information about how we can help you and your spouse move forward after divorce. 

A mediator who practices family law meets with a husband and wife

Top Advantages of Hiring a Mediator Who Practices Family Law in Richmond, VA

A mediator who practices family law meets with a husband and wife

What are the top advantages of hiring a mediator who practices family law in Richmond, VA? Mediation continues to grow as a popular choice for those who want to keep their case out of the courts, many attorneys have seen the benefits of mediation both in their practice and for their clients. Oftentimes, and especially with the current backlog of court cases, mediation is also a faster way to find resolutions as most of the work is done outside of the courtroom.

When families need help through mediation, it is often best to hire a mediator who practices family law. Not only is the mediator well educated and skilled in conflict resolution, but they also know state laws that could apply to your situation. When looking for family mediation in Richmond, VA, learn more about the top advantages of hiring a mediator who practices family law.

Understand Court Requirements

Hiring a mediator who practices family law is essential when it comes to making sure that the agreements are valid in court. Attorneys who have spent years within the family court system know what is usually needed to settle a case. Mediators who have worked within the courts understand what agreements will be acceptable to the court and what is not. This knowledge can be quite helpful when finding cooperative solutions during family mediation in Richmond, VA.

Experience with Other Clients

Family law attorneys have seen their fair share of family cases. From simple cases to complicated ones, an experienced family law attorney has likely seen it all. This kind of experience often leads to an agreement more quickly. While you must be willing to reach an agreement together during mediation, a family law mediator can help when working out the sticky parts of a case thanks to past experience with other couples.

Save Time and Money

Even though they can’t give legal advice, mediators who are also family law attorneys can save clients time and money when it comes to their knowledge of the court system. They have experience working with many other couples and families and can help find a reasonable solution for everyone involved. This saves time while in mediation sessions and also when it comes to getting mediation agreements approved in court. The likelihood that extra mediation is needed after being filed in court is lower thanks to the skills and knowledge that a family law attorney has a mediator.

Even If You Choose Not To Mediate

Hiring a family lawyer who is also a mediator could be a smart move for those clients who may need legal assistance. A lawyer-mediator has an additional set of negotiation skills and training that may help the parties arrive at settlement even if they choose not to mediate. Additionally, they may encourage and assist their client(s) in participating in mediation as a more efficient, least costly, and least stressful way to resolve their issues.

Is A Mediator Who Practices Family Law Right For You?

When choosing family mediation in Richmond, VA, it is essential to consider all of your options. Hiring a mediator who practices family law is a great way to ensure that you have experience on your side.

Consider contacting Donita King Law Offices today for more information about hiring a mediator who practices family law in the Richmond area.

Virtual Mediation

Making Mediation Easier: 5 Reasons to Choose Virtual Divorce Mediation in Virginia Beach

Is virtual divorce mediation right for you and your spouse in Virginia Beach? Finding a good time and place for mediations can be tricky. Not only do the two parties involved need to agree to a time, but the mediator must also have an opening in their schedule. Add in that some mediations have attorneys present, and you could have an additional two people to coordinate.

Virtual mediations are an excellent option for those clients who have a hard time meeting in person. There are many reasons why virtual mediation may be a good fit for you. Consider these 5 reasons to choose virtual mediation to come to an agreement in your case:

Clients Who Travel Often

Some parties choose virtual mediations when one or both of the clients travel often. Usually, this travel pertains to work, and it is hard to take time off when a client is always on the go. Virtual mediations are a great option in this case as each client can log into a mediation from wherever they are. We do recommend, however, that mediations take place when both clients can dedicate the necessary time to be present and focus on the mediation proceedings.

Clients with Physical Restrictions

Getting around can be hard for those clients who struggle with mobility. Virtual mediations are a valuable tool when one or more of the clients have a disability or sickness. Not only does a virtual mediation reduce stress and anxiety about getting somewhere on time, but it also allows the client to feel comfortable in their own home. 

With the recent worldwide pandemic of COVID-19, many clients and mediators are turning to virtual mediations when they can’t physically be in the same room. Doing so allows everyone to stay healthy and lowers the risk of infection during an outbreak.

Clients in Different Locations

Virtual mediations serve clients well who live in different cities or states altogether. Meeting online to reach an agreement allows both parties the chance to come together during the mediation. Technology allows these clients to participate in mediation without needing to make a special trip that takes up a lot of extra time. 

Mediator in a Different Location

Some clients have mediators that they prefer to work with who don’t live in their area. These situations are perfect for virtual mediations. The chosen mediator can meet online and speak to the clients together in the same room or clients in separate locations. 

Choosing virtual mediation when a mediator is in a different location usually occurs when clients have prior experience with a mediator. Those mediators from a home town or those that have long time experience with a family may also meet under these conditions. 

Reduce Client’s Stress or Anxiety

Meeting in person for a mediation can be quite stressful for certain clients. Meeting on screen, rather than in person, allows some distance that can be quite helpful in the mediation process. Those clients that may shut down during an in-person meeting often feel more comfortable behind a screen. It is quite possible that a virtual mediation could result in better agreements between the two parties than a mediation done in the office.

Choosing the right form of mediation is essential for all of the parties involved. Technology has made mediations more accessible to both clients and mediators through the use of virtual connections. While there are still some regulations and guidelines for virtual mediations, connecting with each other via the internet is often helpful for many clients.

Work With an Expert in Virginia Beach Virtual Divorce Mediation

As an experienced mediator and trainer, Ms. Donita King has experience in virtual mediations and offers this option to clients when needed. For more information about how Ms. King can help you reach an agreement through virtual mediation, contact her office today!

Contact Donita King

Mediator Selection – Best Practices

Mediator Selection Best Practices

In my thirty plus years of legal practice and almost 1700 mediation cases at the time of this writing, I have developed my own list of best practices in every stage of mediation. These come from what I observed as a mediator and as an advocate. At first, I thought it was because some of the lawyers were inexperienced in this process. Later I realized that many of these advocates simply didn’t realize the mistakes they were making, or felt that they had no time to correct them; or simply had no interest for whatever reason in correcting them. Those that fall in the latter category often have the mindset that mediation is just a simple and unimportant collateral process to the litigation system, and is of little or no consequence since the case can be tried in any event.

I am pleased to note a very positive development. Specifically,  in recent years some law schools have programs focusing on alternative dispute resolution and now many law students are getting mediation and arbitration training and simulation practice as part of the curriculum and, or in their participation in the school’s ADR society. Many of today’s future and young lawyers are looking for and recognizing the value of resolving legal issues without litigation, whenever appropriate.

Here are some of the best practices I have observed when selecting the appropriate mediator for a case. There are seven; a few of which are generally acknowledged or accepted. They are:

  1. Subject Matter Knowledge – new developments
  2. Mediator Style – right fit
  3. Ability to connect with the parties
  4. Ability to keep control in the mediation while working with both or all counsel
  5. Neutrality and perception of neutrality
  6. Right mix of legal, mediation, and negotiation skills
  7. Cultural Considerations (knowledge or awareness and sensitivity where appropriate; a growing aspect as our population becomes increasingly diverse).

Subject Matter Knowledge: 

This is one most advocates are familiar with and follow. However, what has developed over the years is complexity in the legal matters where a combination of skill sets or knowledge is needed for the optimal chance of success. For example, an employment case may have serious and complex financial nuances that influence or impact on the circumstances, and such nuances could be lost upon a mediator possessing only general employment law knowledge. The employment relationship may have patent, trade secret or cultural aspects that must be properly addressed or considered in the negotiation and mediation process. Often, such cases look to mediation because it is felt by one or more parties that a judge might not be the best person to assist in resolving the dispute, even though it might be certain the dispute could most likely be resolved with finality. Neither (or more if multiple parties) might feel it preferable for a judicial decision.

 

Mediator Style – One size does not fit all:

Directive? Facilitative? Flexible? The mediator’s style is a significant factor in a successful mediation. The “directive” style is most often found when the mediator is a retired judge or when the mediation is part of a judicial settlement program. However, because it is what most lawyers are used to, they tend to seek out lawyers and other mediators who use this style for all of their cases. Indeed, many advocates think this is the only form of mediation and are uncomfortable with anything else. The problem is that a directive style when one or both clients and at least one of the attorneys do not want this style, is not likely to result is successful mediation. As a former corporate general counsel, many of my corporate legal colleagues as well as me were in the habit of saying “If I wanted someone to tell me what to do or force me to do it, I would just wait for the judge’s settlement conference. I am certainly not going to pay for the privilege of being told what to do!”  My legal colleagues and business clients were looking for someone (a neutral person) with knowledge and skill to help us negotiate a mutually acceptable resolution. On the other hand, if one or more of the clients need a “reality check”, most advocates would agree that directive is the way to go. This is one of the first things I determine when called into a case. What are the lawyers looking for and what are their clients expecting? What has been done so far and what is or is not working? Often, a combination of styles is appropriate and has proven successful.

 

Ability to Connect with the Parties:

Advocates, often as the result of habit, use the same mediator with whom they have had success. This might be a good thing, depending on the case and clients. What they forget in doing so is that each client is different. For a successful mediation, the clients must feel that they are being heard in a safe and neutral forum, that their communication has value, and is being considered by a neutral who respects their input. I have seen cases where advocates assume because the advocate feels these desired items are present; their client may not think or feel the same way.  Sometimes this can be overcome in mediation, but why start the process with something that has to be overcome! At the very least, for efficiency as well as substantive reasons, careful thought should be given to the mediator selected. For example, in sexual harassment or gender discrimination cases, having a male and female co-mediate is often a successful technique that creates the environment for successful negotiations.

 

Ability to keep control of the process:

It is generally expected that a good mediator will own and keep control of the process, but that also means that the mediator should manage the process in accordance with expectations and parameters established prior to the mediation (in pre-session conference) and at the outset. This involves flexibility, as appropriate, and boundaries should be clear to all from the beginning, so that time is not lost due to derailment and getting things back on track.

 

Neutrality and Perception of Neutrality:

This starts in the beginning – the selection process, and continues during the mediation sessions and follow-up. If any of the clients feel that the other side has an advantage, no matter how slight, that should not be overlooked. The simple way to discover this is to ask the client, once they are given the background of the mediator. (They often feel better about the selection of they are not just told but feel they have an option; even if they don’t exercise the option).

 

The right mix of Legal, Mediation, and Negotiation Skills:

This goes along with the style of mediation. What is right for the case, the particular parties, and other counsel? Advocates sometimes overlook the latter point. The most successful advocates intuitively recognize that they need a mediator who possesses the ability to aid the advocate in negotiations where there is personality or style obstacles between or among the attorneys. Also, good mediators are experienced and, or, trained in interest-based negotiation.

 

Cultural Considerations:

With an ever-increasing diverse population, may advocates simply can’t keep up. Again, a good advocate recognizes where assistance is needed and seeks out that assistance. Whether it is the advocate’s client, and, or, the other parties that are culturally diverse, such differences can play a key part in the negotiations and are certainly considered and addressed in successful mediations and negotiations. Assuming they possess the other requisite knowledge and skills, a mediator possessing the particular cultural experience and knowledge can certainly be an advantage.

Transcript of “Work It” Richmond Article/ Profile with Donita King

Tell us the basics: Who are you, what’s your company’s name, and how long have you been at this company?

I am an attorney, arbitrator and Virginia Supreme Court-certified mediator in the family and civil areas. I’m also an authorized mediator, mentor and alternative dispute-resolution trainer. I am a partner of CMG Collaborative Law Offices, PLC, and licensed in Virginia, Pennsylvania and the District of Columbia. The law firm was established in 2005.

How did you come to specialize in cross-border or international law?

We added this area of concentration as a natural development in our family practice. The large military presence and growing population from other countries in Virginia has resulted in the increasing number of diverse families where there are ties to other countries.

When the relationship breaks down, the person with foreign ties often wants to go back to their support system from their own country. As collaborative attorneys and mediators, we began to acquire specific training in the area of cross border and international parental abduction prevention, and practicing under the Hague convention. That’s an international agreement among signatory countries regarding custody, visitation and support of children where the parties have ties to two or more countries. My partner, Mora P. Ellis, established ACCORD, a sister company whose focus is parental abduction prevention mediation.

What’s a lesson you’ve learned during the recessionary environment of the past few years?

It is critical to constantly re-assess the way you are meeting the client’s needs so as to develop more economical ways for yourself and the client. Listening to the clients’ views and keeping their concerns in mind is a good way to develop new ideas and methods. Also, communicating with the client or potential client as to what you are doing in this respect can go a long way to securing and increasing your client base.

Is there a secret to your personal success? Perhaps a piece of advice you’ve always remembered?

Never stop looking for new ways to grow and improve, and consider all sources. You never know from where a good idea will come.

What’s coming up in the next year for you and your company? What about in the next five years?

(1) Continuing to educate the public and professionals on the benefits of the collaborative process in family and civil matters as viable, alternative dispute resolution option.

(2) Increasing our work in cross-border and international parental abduction prevention.

What, at your business, is the most effective way to connect with customers?

Internet, face-to-face and networking. Educating the public on things that are of benefit to them is also an effective way to connect with potential clients.

What’s the part of your job you dread the most?

When I was a corporate lawyer I could have easily provided a specific answer to this question. Now that I have my own firm and am doing something I enjoy and feel good about, there is nothing I dread.

What’s the part of your job that excites you the most, the thing that makes you want to hurry to work?

There is a great deal of variety in what I do. I do everything from arbitrating financial, real estate and contract matters to mediating civil and domestic relations matters (sometimes in Spanish). I’m also assisting clients in collaborative divorce and potential collaborative civil cases, cross border and international parental abduction prevention mediation and Hague case work, and training in alternative dispute resolution.

The Benefits of Mediation in caring for Elderly Relatives

Today, more and more people are finding themselves in the position of having to care or make decisions for elderly relatives. This becomes increasingly more difficult when there are two or more family members involved and they disagree. Often this occurs when a mother or father dies and the other parent is left alone. Should that parent live alone? If not, should they live with another relative, one of the children, or go into a nursing home? Should one of the children and their family move in with the surviving parent? If so, on what conditions? In any event, who should make the medical and, or, financial decisions for that parent, and what if the others disagree? In this situation where the elderly parent is being treated somewhat like a child, there is the issue of the parent’s independence and their strong sense of self in their ability to make their own decisions, as they have been for their adult lives. While the parent is struggling to preserve the remnants of their own independence and dignity, they are often placed in the middle of family squabbles and become frightened, sad, hurt, and dismayed at the developing controversy and their role as the subject of that controversy. I have heard on more than one occasion from those placed in this position that they just want everyone to get along and stop fighting. If the controversy escalates and the elderly person’s care and well-being is put in jeopardy due to the family’s inability to make appropriate decisions concerning that relative, a guardian might be appointed through the court system to represent the elderly person, make sure that person’s voice is (preferences are) heard, and make decisions that are in the elderly person’s best interest. When this occurs, the family has lost control and there is outside intervention (by the guardian).

 

Mediation gives families the opportunity to retain control before or after an outsider is introduced into the process. The mediator is trained to help the family members discuss the issues in a non-threatening manner and explore options that have the potential of leading to a successful resolution. Where there are control issues due to family dynamics (one or more members of the family having more control than the others), the mediator can help to “level the playing field” so that everyone is heard and given an equal voice in the decision making, as appropriate, especially the elderly relative. Often people find that when everyone is heard, invalid or incorrect assumptions fall by the wayside and they are able to come up with mutually agreed upon options and resolution. When people are able to work things out for themselves, they are more likely to commit to the outcome, and it is not uncommon that the parties to the dispute come to understand things about themselves and others that help to preserve relationships or foster better relationships going forward.

Spousal Support in Virginia

In Virginia, section 20-107.1 of the Virginia Code sets out the law with respect to spousal support.  The court, in deciding whether to award support and maintenance for a spouse, must consider the circumstances and factors which contributed to the dissolution of the marriage, specifically including adultery and any other ground for divorce as stated elsewhere in the Virginia Code. In determining amount, duration and the nature – whether it is remedial for a time period or permanent, of spousal support, the court must consider the following thirteen factors.

  1. The obligations, needs and financial resources of the parties, including but not limited to income from all pension, profit sharing or retirement plans, of whatever nature;
  2. The standard of living established during the marriage;
  3. The length of the marriage
  4. The age and physical and mental condition of the parties and any special circumstances of the family;
  5. The extent to which the age, physical or mental condition or special circumstances of any child or the parties would make it appropriate that a party not seek employment outside of the home;
  6. The contributions, monetary and nonmonetary, of each party to the well-being of the family;
  7. The property interests of the parties, both real and personal, tangible and intangible;
  8. The provisions made with regard to the marital property under Virginia Code section 20-107.3 (distinguishing marital and separate property);
  9. The earning capacity, including the skills, education and training of the parties and the present employment opportunities for persons possessing such earning capacity;
  10. The opportunity for, ability of, and the time and costs involved for a party to get the appropriate education, training and employment to obtain the skills needed to enhance his or her earning ability;
  11. The decisions regarding employment, career, economics, education and parenting arrangements made by the parties during the marriage and their effect on present and future earning potential, including the length of time one or both of the parties have been absent from the job market;
  12. The extent to which either party has contributed to the attainment of education, training, career position or profession of the other party; and
  13. Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.

 

How each of the above factors contribute to or are weighed in each case, depends on the judge to whom the case is assigned. Often, parties prefer to take this decision out of the judge’s hands and with the help of an experienced mediator and, or, their attorneys, come to a resolution of this issue on their own.  The important thing to keep in mind is that this is a very involved issue and divorcing parties should be very careful that they do not waive any rights with respect to spousal support unknowingly. In trying to avoid this danger, often divorcing couples find themselves fighting about spousal support even when they have reached mutual agreement on other issues. Mediation and the collaborative process are two excellent ways to resolve this issue in a non-adversarial manner. In both processes, the parties work together to arrive at a mutually acceptable resolution, tailored to their particular family circumstances.

Using the Right Words for Mediation and Negotiation

I recall one of my first mentors in the legal field advising me to work on changing my language to develop more powerful speech. As a young lawyer, woman, and minority over thirty years ago, in the very conservative insurance and financial services industry; I needed to learn how to make my speech work for me. My mentor gave me a book that started me on the path of not just choosing my words carefully, but consciously choosing subtle but powerful non-offensive words when needed. This simple but effective measure contributed significantly to rapid and positive results in my corporate legal practice. So, when I entered the ADR arena, it was time to work on my language again in two capacities – as a collaborative attorney and negotiator, and as a mediator.

 

I have observed advocates who are not mindful of their words, use counter-productive language when they are sincerely trying to negotiate or develop a mutual agreement or satisfactory resolution. Most of the time they are unaware of what they have said until it is pointed out. Other times they realize they should have chosen language more carefully but are not quite sure how. The problem is that most advocates are skilled gladiators and spend their time, energy, and focus on how to become more so. Many think or feel that it is not necessary to change their language or manner of speech; that just being inoffensive is enough. The fact is that using language – appropriate wording and manner, can greatly assist the advocate in effective and fruitful negotiations. One of my favorite quotes is attributed to Daniele Vare: “Diplomacy is letting the other person have your way.”

 

Suggestions for Mediation Advocates:

  1. Avoid language that sounds positional; speak in terms of the parties’ interests.
  2. Avoid blaming language, or language likely to evoke an emotional response at the sacrifice of rationality.
  3. Speak in terms of your client’s needs rather than making demands.
  4. When presenting a point on your client’s behalf, acknowledge something on behalf of the opposing party (a small face-saving item or positive attribute or action).
  5. When the first instinct is to use language that attacks, pause and think of a way to present the same idea, in a more acceptable way. (This may be difficult in the beginning, but becomes much easier with practice.)
  6. When other cultures are involved, research what might be considered rude or offensive in that culture with respect to manner and speech.
  7. Practice-practice-practice!

 

It has long been recognized that an important conflict resolution skill and mediation technique is knowing how to select language that will de-escalate a conflict. An advocate’s awareness of words and phrases that may be counter-productive, and the replacement of these words with more effective language for negotiation or mediation purposes, will greatly improve the potential for successful mediation and resolution.

 

 

Resource:

  1. Using Mediation Language, Coast to Coast Mediation Center, http://www.ctcmediation.com/mediation_language_techniques.htm